Fenelon v. Superior Court

Decision Date20 September 1990
Docket NumberNo. D011414,D011414
Citation223 Cal.App.3d 1476,273 Cal.Rptr. 367
CourtCalifornia Court of Appeals Court of Appeals
PartiesMichael John FENELON, M.D., et al., Petitioners, v. The SUPERIOR COURT of San Diego County, Respondent, John P. DUNBAR, Jr., Real Party in Interest.

Stephen P. Oggel, Brian A. Barnhorst, and Lorenz, Alhadeff, Lundin & Oggel, San Diego, for petitioners.

No appearance for respondent.

Robert C. Anderson, and Anderson & Frank, San Diego, for real party in interest.

WIENER, Acting Presiding Justice.

In this writ proceeding we decide that a knowingly false report to the police department is not absolutely privileged under Civil Code section 47, subdivision 2. 1 Accordingly here the court properly overruled the petitioners' demurrer with respect to statements made to the police. As we shall explain those statements are subject to a qualified privilege under section 47(3). 2 We therefore deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

In the underlying action plaintiff John Dunbar sued petitioners Michael and Dolly Fenelon for defamation. 3 Accepting the According to Dunbar, the Fenelons induced Amrith Harry Gobin 4 by force, threat of force and/or fraud to inform police and other non-official persons that Dunbar had solicited Dr. Fenelon's murder. At all relevant times the Fenelons knew the information was false and had, in fact, fabricated the allegations in their entirety. The Fenelons published the false report with malice for the sole purpose of damaging Dunbar. 5

allegations of the complaint as true, the following scenario is described.

After unsuccessfully demurring to Dunbar's first amended complaint, the Fenelons seek extraordinary relief.

DISCUSSION

I

The Fenelons' petition for a writ of mandate emphasizes the significance of Williams v. Taylor (1982) 129 Cal.App.3d 745, 181 Cal.Rptr. 423 which holds the section 47(2) absolute privilege applicable to a citizen's report to the police of possible criminal activity by an employee. They say that in overruling their demurrer the trial court failed to perform its responsibilities under Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.

As an intermediate appellate court we are indeed sensitive to this argument. 6 It is essential that courts act only within the limited powers authorized by law. "Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court." (Id. at p. 455, 20 Cal.Rptr. 321, 369 P.2d 937.) After reviewing this single precedent, we became concerned, however, that Williams might have overstated the rule regarding the privilege to be accorded police reports. We discerned a need to more carefully balance the competing interests of insuring the free flow of information to law enforcement regarding suspected criminal activity without fear of civil liability and protecting individuals from false accusations of wrongdoing. In light of our concern and our sense that Williams failed to examine whether these competing interests should be balanced, we reviewed similar cases throughout the United States. Our intuition was well-founded. We discovered a plethora of police report cases from other jurisdictions dealing with the qualified privilege. Before discussing those cases, we briefly review California authority regarding privileged communications.

We are satisfied that sociological studies are unnecessary to establish the fact that a certain percentage of the reports made to the police are inaccurate. There probably are a number of reasons for this. The person making the report may have been inattentive to the events being described or failed to exercise reasonable care in recounting what purportedly occurred. In addition, however, there may be those situations where individuals sparked by anger, vindictiveness, malice or some other less than benevolent human characteristic will file a knowingly false police report for no other reason than to "get even." In these situations--the innocent or negligent error and the intentional inaccuracy--the reports routinely spawn civil actions for defamation which raise the issue of privilege.

As explained in Slaughter v. Friedman (1982) 32 Cal.3d 149, 155, 185 Cal.Rptr. 244, 649 P.2d 886, section 47 recognizes "(1) [a]n absolute privilege for a publication or broadcast made 'In the proper discharge of an official duty' (subd. 1). [p] ) [a]n absolute privilege for a publication made 'In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable [by a mandate action] ...' (subd. 2). [p] [and] (3) [a] qualified privilege for a publication made 'In a communication, without malice, to a person interested therein, (1) by one who is also interested, ...' (subd. 3)." (Emphasis in original.)

The term "official proceeding" in section 47(2) embraces proceedings "which [resemble] judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings...." (McMann v. Wadler (1961) 189 Cal.App.2d 124, 129, 11 Cal.Rptr. 37; see also Prosser & Keeton, Torts (5th ed. 1984) § 114, pp. 818-819.)

"In determining whether an administrative body or agency possesses such quasi-judicial power, the preliminary factors to be determined are '(1) whether the administrative body is vested with discretion based upon investigation and consideration of evidentiary facts, (2) whether it is entitled to hold hearings and decide the issue by the application of rules of law to the ascertained facts and, more importantly, (3) whether its power affects the personal or property rights of private persons....' " (Tiedemann v. Superior Court (1978) 83 Cal.App.3d 918, 925, 148 Cal.Rptr. 242, citing Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865, 100 Cal.Rptr. 656.)

In general, the absolute privilege under section 47(2) is available only where there is an express statutory authorization for the administrative agency to exercise quasi-judicial power. (See Chen v. Fleming (1983) 147 Cal.App.3d 36, 194 Cal.Rptr. 913 (complaint to State Bar charging attorney misconduct where the State Bar was authorized by statute to discipline attorneys); Imig v. Ferrar (1977) 70 Cal.App.3d 48, 138 Cal.Rptr. 540 (complaint to police department charging misconduct by an officer where the police department was authorized by city charter to conduct hearings and discipline its officers); Martin v. Kearney (1975) 51 Cal.App.3d 309, 124 Cal.Rptr. 281 (complaint to school principal alleging teacher misconduct where the school board was authorized to discipline school employees); and King v. Borges (1972) 28 Cal.App.3d 27, 104 Cal.Rptr. 414 (complaint to Division of Real Estate charging misconduct of broker where the agency was authorized to suspend or revoke brokers' licenses).)

Williams v. Taylor, supra, 129 Cal.App.3d 745, 181 Cal.Rptr. 423, purported to rely on Imig v. Ferrar, supra, 70 Cal.App.3d 48, 138 Cal.Rptr. 540, when it applied the section 47(2) absolute privilege in the police report context. Unlike Imig, where the report involved allegations of misconduct by a police officer and prompted investigation by a police board empowered to hold hearings and take disciplinary action against its officers, Williams involved a report of suspected criminal activity by the president of a car dealership against the manager of its body shop. The report prompted a month-long criminal investigation. The police then referred the matter to the district attorney's office for prosecution. A complaint was filed charging the general manager with grand theft and embezzlement. The prosecution dismissed the grand theft count on the day of trial and the employee was acquitted of embezzlement. (Id. 129 Cal.App.3d at p. 750, 181 Cal.Rptr. 423.)

In holding that the employer's report to the police was absolutely privileged, the court emphasized the importance of providing citizens with access to governmental agencies for the purpose of reporting suspected illegal activity without fear of liability for defamation. (Id. at pp. 753-754, 181 Cal.Rptr. 423.) Ignoring the requirement that the "official proceeding" referred to in section 47(2) be quasi-judicial in nature, the court concluded that "a communication concerning possible wrongdoing, made to an official governmental agency such as a local police department, and ... designed to prompt action by that entity, is as much a part of an 'official proceeding' as a communication made after an official investigation has commenced." (Id. [223 Cal.App.3d 1482] at p. 753, 181 Cal.Rptr. 423.) 7 The court also ignored substantial authority in other jurisdictions which holds that statements made to police concerning suspected criminal activity are accorded only a qualified privilege. 8

There is general agreement on the rationale supporting the grant of a qualified privilege in these circumstances. Prosser includes in his classification of privileged "communications to one who may act in the public interest" statements by private citizens to the proper authorities for the prevention or detection of crime. (Prosser & Keeton, Torts (5th ed. 1984) § 115, p. 830.) Stated a different way, "Communications which would otherwise be slanderous are protected as privileged, if made in good faith by the injured person in the prosecution of an inquiry regarding a crime which he believes to have been committed upon his property, and for the purpose of detecting the criminal or bringing him to punishment.... The privilege thus accorded is upon the grounds of public policy." (Hardaway v. Sherman Enterprises, Inc., supra, 210 S.E.2d at p. 364; see also Jones v. Wesley, supra, 424 So.2d at p. 1111.) Other jurisdictions phrase the rule of qualified privilege in terms...

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