Carney v. Rotkin, Schmerin & McIntyre

• Decision Date: 30 December 1988
• Docket Number: No. B030120,B030120
• Citation: 206 Cal.App.3d 1513,254 Cal.Rptr. 478
• Court: California Court of Appeals Court of Appeals
• Parties: Lydia W. CARNEY, Plaintiff and Appellant, v. ROTKIN, SCHMERIN & McINTYRE, Michael McIntyre, Maria Bello, L.T. Litho & Printing, Inc. and Does 1 through 20, inclusive, Defendants and Respondents.

Page 478

254 Cal.Rptr. 478

206 Cal.App.3d 1513

Lydia W. CARNEY, Plaintiff and Appellant, v. ROTKIN, SCHMERIN & McINTYRE, Michael McIntyre, Maria Bello, L.T. Litho & Printing, Inc. and Does 1 through 20, inclusive, Defendants and Respondents.

No. B030120.

Court of Appeal, Second District, Division 5, California.

Dec. 30, 1988.

Review Denied March 16, 1988.

Turner, Cooper and Reynolds and Lincoln D. Gardner, Irvine, for plaintiff and appellant.

Fields & Brandon and Debra Fischl, Encino, for defendants and respondents.

KENNARD, Associate Justice.

This is an appeal from an order of dismissal ¹ entered after the trial court sustained a demurrer to the first amended complaint without leave to amend. The primary issue is whether, as the trial court found, the absolute privilege of Civil Code section 47, subdivision 2 applies to certain false statements which an attorney representing a judgment creditor made to the judgment debtor.

We conclude the absolute privilege does not apply here. Therefore, the trial court erred in sustaining the demurrers on the ground of the applicability of the privilege. However, as to certain causes of action the demurrers were sustainable on other grounds. Consequently, we reverse the judgment (order of dismissal) in part, and affirm it in part.

BACKGROUND

In determining the propriety of the trial court's ruling sustaining defendants' demurrer, we must accept as true those facts properly pleaded in the complaint. ² (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170, 164 Cal.Rptr. 839, 610 P.2d 1330; Jones v. Grewe (1987) 189 Cal.App.3d 950, 954, 234 Cal.Rptr. 717.) Those facts are as follows:

After obtaining a money judgment of $2,720.80 against plaintiff, defendant creditor retained the defendant law firm of Rotkin, Schmerin & McIntyre to collect on the debt.

Defendants served plaintiff, a 74-year-old widow, with a court order to appear at a judgment-debtor examination on Friday, October 24, 1986. Plaintiff made arrangements with one Fred King for transportation to the court. King, however, failed to show up, and plaintiff did not appear at the hearing. The next Monday, plaintiff called defendant law firm to explain her absence from the court hearing. She spoke to Maria Bello, a secretary. Bello told plaintiff that a bench warrant had been issued, and that it would remain in effect until plaintiff paid the law firm $1,000 on the underlying debt.

Three days later, Attorney Michael McIntyre of defendant's law firm sent plaintiff a letter stating: "Confirming my secretary's conversation with you on October 27, 1986, these offices will not recall the Bench Warrant unless it is in receipt of a cashier's check and/or money order from you in the sum of $1,000. [p] The balance due as of this date is $2,720.82."

Believing defendant law firm's representation that the court had issued a warrant for her arrest, and knowing she could not comply with the firm's demand for payment of $1,000 so the warrant could be withdrawn, plaintiff stayed at her apartment "for the balance of the following week" awaiting arrest. As a result, she experienced "great stress, anxiety and a feeling of hopelessness at the prospect of incarceration." Plaintiff later discovered that there was no bench warrant, and that neither defendant creditor nor any member of defendant law firm had appeared at the October 24, 1986 court hearing.

In April 1987, plaintiff sued defendant law firm, its attorney Michael McIntyre, its secretary Maria Bello, and the judgment creditor. The complaint alleged causes of action for intentional and negligent infliction of emotional distress, abuse of process, and unfair debt collection practices. In June 1987, the trial court sustained defendants' demurrer to the complaint, with 30 days leave to amend. Two weeks later, plaintiff filed a first amended complaint. Defendants demurred, claiming, among other grounds, that the statements were absolutely privileged under Civil Code section 47, subdivision 2. Relying solely on the ground of privilege, the trial court sustained the demurrer without leave to amend, and ordered the action dismissed. Plaintiff appealed.

DISCUSSION

1. Sustaining the Demurrer on the Ground of Absolute Privilege

Subdivision 2 of Civil Code section 47 affords an absolute privilege to a publication made in a "judicial proceeding." The Legislature enacted this privilege in 1872 as part of a statutory scheme on defamation, which is defined, in part, as a "false and unprivileged publication." (Civ.Code, §§ 45 [libel] and 46 [slander]; Block v. Sacramento Clinical Labs., Inc. (1982) 131 Cal.App.3d 386, 389, 182 Cal.Rptr. 438.) The purpose underlying the privilege was "to afford litigants the utmost freedom of access to the courts to secure and defend their rights without fear of being harassed by actions for defamation." (Albertson v. Raboff (1956) 46 Cal.2d 375, 380, 295 P.2d 405.)

For the next 84 years, the defense of privilege remained limited to defamation proceedings. Then, in 1956, the state Supreme Court applied the privilege to defeat an action for disparagement of title based on the filing of a lis pendens by a defendant who allegedly knew he had no right to a lien or an interest in the plaintiff's real property. (Albertson v. Raboff, supra, 46 Cal.2d 375, 379, 295 P.2d 405.) The Albertson court explained that " 'the effect of a lis pendens is to give constructive notice of all the facts apparent upon the face of the pleadings,' " and therefore "the recordation of a notice of lis pendens is in effect a republication of the pleadings." Since the publication of the pleadings was "unquestionably clothed with absolute privilege," the republication thereof by the recording of the notice of lis pendens was similarly privileged. (Id., at p. 379, 295 P.2d 405.) In holding that the absolute privilege attaches if a publication "has a reasonable relation to the action and is permitted by law," the Albertson court noted that the recordation of a lis pendens is permitted by law and, like any other document filed in a court proceeding, it has a reasonable relation to the action. (Id., at p. 381, 295 P.2d 405.)

The absolute privilege now applies to "virtually all other causes of action, with the exception of an action for malicious prosecution." ³ (Ribas v. Clark (1985) 38 Cal.3d 355, 364, 212 Cal.Rptr. 143, 696 P.2d 637.) When asserted as a defense, the privilege directly affects liability. In this respect, it differs from evidentiary privileges, which operate by excluding evidence. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 419, 231 Cal.Rptr. 113; Block v. Sacramento Clinical Labs, Inc., supra, 131 Cal.App.3d 386, 389, 182 Cal.Rptr. 438.)

The absolute privilege of Civil Code section 47, subdivision 2 applies to judges and other official officers, attorneys, parties, jurors, and witnesses, even when their testimony is allegedly perjured or malicious. (Portman v. George McDonald Law Corp. (1979) 99 Cal.App.3d 988, 990, 160 Cal.Rptr. 505; Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 824-825, 106 Cal.Rptr. 718.) " 'The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.' " (Kachig v. Boothe (1971) 22 Cal.App.3d 626, 641, 99 Cal.Rptr. 393.)

To fall within the privilege, a communication must meet these four requirements: (1) it was made in a judicial proceeding; ^{4 4} (2) it had some connection to the action; (3) it was made to achieve the purpose of the litigation; and (4) it involved litigants or other participants authorized by law. (Walsh v. Bronson (1988) 200 Cal.App.3d 259, 269, 245 Cal.Rptr. 888; Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 772-773, 234 Cal.Rptr. 653; Chen v. Fleming (1983) 147 Cal.App.3d 36, 41, 194 Cal.Rptr. 913; Portman v. George McDonald Law Corp., supra, 99 Cal.App.3d 988, 990, 160 Cal.Rptr. 505; Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d 818, 825, 106 Cal.Rptr. 718.) When a communication meets these requirements, the privilege is absolute; that is, it is unaffected by the presence of malice. (Costa v. Superior Court (1984) 157 Cal.App.3d 673, 677, 204 Cal.Rptr. 1; Fuhrman v. California Satellite Systems, supra, 179 Cal.App.3d 408, 419, 231 Cal.Rptr. 113.)

In challenging the trial court's ruling, plaintiff focuses on the third requirement. She contends that, in falsely representing to her the court had issued a bench warrant for her arrest based on her failure to appear in court, defendant law firm did not make the statement to achieve the object of the litigation. Therefore, plaintiff asserts, defendants failed to satisfy the third requirement. In support, plaintiff cites Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893, 136 Cal.Rptr. 321.

In Kinnamon, the defendant attorneys, in attempting to collect on a debt which the plaintiff owed their client, sent the plaintiff a letter saying that issuing a check with insufficient funds, as the plaintiff had done, was a misdemeanor and that they would file a criminal complaint against the plaintiff. The latter sued the defendants for intentional infliction of emotional distress. The trial court sustained the defendants' demurrer, and ordered the action dismissed. On appeal, the court reversed, holding that the absolute privilege of Civil Code section 47, subdivision 2 was inapplicable to the attorney's conduct. Citing rule 7-104 of the California Rules of Professional Conduct, ⁵ the court said: "The threat by an attorney to present criminal charges in order to obtain an advantage in a civil action is one which the Rules of Professional Conduct proscribe.... The threat thus cannot serve the purpose of litigation. It is a cause for discipline of the attorney [citations], a proposition totally inconsistent with a privileged status." (66 Cal.App.3d...