City of Long Beach v. Bozek

• Decision Date: 01 June 1982
• Citation: 31 Cal.3d 527,183 Cal.Rptr. 86,645 P.2d 137
• Court: California Supreme Court
• Parties: , 645 P.2d 137 CITY OF LONG BEACH et al., Plaintiffs and Appellants, v. Richard BOZEK, Defendant and Respondent. L.A. 31448.

Page 86

183 Cal.Rptr. 86

31 Cal.3d 527, 645 P.2d 137

CITY OF LONG BEACH et al., Plaintiffs and Appellants, v. Richard BOZEK, Defendant and Respondent.

L.A. 31448.

Supreme Court of California,

In Bank.

June 1, 1982.

As Corrected June 15, 1982.

Robert W. Parkin, City Atty., Robert E. Shannon, Senior Deputy City Atty. and Thomas A. Vyse, Deputy City Atty., for plaintiffs and appellants.

William H. Sortor and Carroll, Burdick & McDonough, San Francisco, as amici curiae on behalf of plaintiffs and appellants.

Philip A. Zywiciel, Los Angeles, for defendant and respondent.

Ronald R. Talmo, Santa Ana, Fred C. Okrand, Los Angeles, Leonard Sacks, Northridge, Robert E. Cartwright, San Diego, William M. Shernoff, Claremont, Sanford Gage, Beverly Hills, Victoria De Goff, Berkeley, Glen T. Bashore, North Fork, Harvey R. Levine, Claremont, Edward I. Pollock, Los Angeles, Stephen I. Zetterberg, Claremont, Arne Werchick, San Francisco, Ian Herzog, Los Angeles and Wylie Aitken, Santa Ana, as amici curiae on behalf of defendant and respondent.

MOSK, Justice.

The sole issue is whether a city may maintain a malicious prosecution action against an individual who unsuccessfully sued the city for false imprisonment and related torts arising out of alleged police misconduct. ¹ We believe that existing remedies are adequate to protect the interests of municipalities in obtaining compensation for the expenses incurred in defending against unwarranted lawsuits and in deterring improper suits in the future. Additionally, the maintenance of malicious prosecution actions by governmental entities would generate a potentially chilling effect of considerable dimension upon the exercise of the right to petition the government through the courts for redress of grievances. Therefore, constitutional principles and tort principles combine to make the existence of a malicious prosecution action inappropriate in this context.

The facts are simply stated: Defendant Richard Bozek filed suit against the City of Long Beach and two city police officers for false imprisonment, false arrest, negligent hiring, assault, and battery. A jury found for the city and the two officers, who then instituted this action against Bozek for malicious prosecution. The complaint alleged that Bozek had brought the previous suit without probable cause and with knowledge that the allegations made in his complaint were false. Bozek generally demurred to the city's complaint, and the trial court sustained his demurrer without leave to amend only as to the city on the ground that municipalities should not be permitted to sue for malicious prosecution. The city appeals. ²

"To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations]." (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50, 118 Cal.Rptr. 184, 529 P.2d 608.) In Bertero, we succinctly stated the policy considerations underlying the tort of malicious prosecution: "The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings. In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action including reasonable attorney's fees [citations] ... and [damages] for mental or emotional distress [citation]." (Id. at pp. 50-51, 118 Cal.Rptr. 184, 529 P.2d 608.)

Our repeated references in Bertero to the types of harm suffered by an "individual" who is forced to defend against a baseless suit do not indicate, as Bozek suggests, that a malicious prosecution action can be brought only by an individual. On the contrary, there are valid policies which would be furthered by allowing nonindividuals to sue for malicious prosecution. Admittedly, a governmental entity's interest in protecting its reputation is minimal, and it is not capable of suffering emotional distress. The city here did not, however, institute the present action to obtain recovery for harm to reputation or for emotional distress. Rather, it sought only to obtain reimbursement for expenses incurred in defending against the previous suit but which it could not recover as costs. ³ From the time we first recognized that a tort action for malicious prosecution would lie for wrongful institution of civil proceedings, it has been clear that compensation for expenses of defending a suit is persuasive justification for permitting a malicious prosecution action to proceed. (See Eastin v. Bank of Stockton (1884) 66 Cal. 123, 126-127, 4 P. 1106.) In addition to a plaintiff's interest in recovering all its expenses of suit, the courts and the public have a significant interest in promoting the efficient administration of justice by discouraging baseless lawsuits. We thus decline to formulate a general rule allowing malicious prosecution actions only for individual plaintiffs.

Nevertheless, significant countervailing factors militate against allowing governmental entities to sue for malicious prosecution. Foremost among these is the constitutionally guaranteed right to petition the government for the redress of legitimate grievances. (U.S.Const., 1st Amend.; Cal.Const., art. I, § 3.) The right of petition, like the other rights contained in the First Amendment and in the California constitutional Declaration of Rights, is accorded "a paramount and preferred place in our democratic system." (American Civil Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 178, 10 Cal.Rptr. 647, 359 P.2d 45, cert. den., 368 U.S. 819, 82 S.Ct. 34, 7 L.Ed.2d 25.) The Supreme Court has stated that "the rights to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose, with the other First Amendment rights of free speech and free press." (Mine Workers v. Illinois Bar Assn. (1967) 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426; see also Thomas v. Collins (1945) 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430; De Jonge v. Oregon (1937) 299 U.S. 353, 364, 57 S.Ct. 255, 259, 81 L.Ed. 278.)

When attempting to determine whether Bozek's act of filing suit against the city was an exercise of the right of petition, it is helpful to examine cases defining the scope and meaning of the right of petition in other contexts. In a line of cases interpreting federal antitrust laws, the Supreme Court has held that the right of petition protects the freedom to seek redress from all three of the coordinate branches of government. In Eastern R. Conf. v. Noerr Motors (1961) 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464, the court declared that the provisions of the Sherman Act could not be used to impose civil sanctions for a publicity campaign aimed at influencing the Legislature, even if the campaign was designed to stifle competition from the trucking industry. The court stated: "The right of the people to inform their representatives in government of their desires with respect to the passage or enforcement of laws cannot properly be made to depend upon their intent in doing so." (Id., 365 U.S. at p. 139, 81 S.Ct. at p. 530.) In Mine Workers v. Pennington (1965) 381 U.S. 657, 669-672, 85 S.Ct. 1585, 1592-1594, 14 L.Ed.2d 626 the court held that concerted efforts to influence the conduct of executive officials are similarly privileged, regardless of whether those efforts are undertaken with an anticompetitive--i.e., improper--purpose. In a third case, the court ruled that the right of petition encompasses attempts to obtain redress through the institution of administrative and judicial proceedings, as well as through political means. The court declared: "Certainly the right to petition extends to all departments of the Government. The right of access to the courts is but one aspect of the right of petition." (California Transport v. Trucking Unlimited (1972) 404 U.S. 508, 510, 92 S.Ct. 609, 611, 30 L.Ed.2d 642.)

Other courts, analogizing to the Noerr-Pennington doctrine, have created privileges from civil liability for actions constituting the exercise of the right of petition. Two cases dealt with federal statutory causes of action. (First Nat. Bank of Omaha v. Marquette Nat., etc. (1980) 636 F.2d 195, 199, fn. 4, cert. den., 450 U.S. 1042, 101 S.Ct. 1761, 68 L.Ed.2d 240; Stern v. United States Gypsum, Inc. (1977) 547 F.2d 1329, 1342-1346, cert. den., 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467.) Other cases have barred suit for the tort of interference with economic relations. (Matossian v. Fahmie (1980) 101 Cal.App.3d 128, 135-138, 161 Cal.Rptr. 532 [public comment on the transfer of a business license by an administrative agency]; State of Mo. v. Nat. Organization for Women (1980) 620 F.2d 1301, 1316-1319, cert. den., 449 U.S. 842, 101 S.Ct. 122, 66 L.Ed.2d 49 [public activities directed toward influencing state legislatures to ratify the Equal Rights Amendment]; Sierra Club v. Butz (1972) 349 F.Supp. 934 [institution of a lawsuit in an attempt to persuade the Forest Service to alter its timber sale policies].)

A different series of cases invoked the right of petition and the right to assemble peaceably in order to ensure that members of private organizations...