Frisk v. Merrihew

• Decision Date: 04 October 1974
• Citation: 42 Cal.App.3d 319,116 Cal.Rptr. 781
• Court: California Court of Appeals Court of Appeals
• Parties: , 85 A.L.R.3d 1128 Richard M. FRISK, Plaintiff and Appellant, v. James L. MERRIHEW, Defendant and Respondent. Civ. 32454.

Page 781

116 Cal.Rptr. 781

42 Cal.App.3d 319, 85 A.L.R.3d 1128

Richard M. FRISK, Plaintiff and Appellant, v. James L. MERRIHEW, Defendant and Respondent.

Civ. 32454.

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

Oct. 4, 1974.

Richard M. Frisk, in pro. per.

Bennett, Van De Poel, Campbell & Ginder, Bryant M. Bennett, Oakland, for defendant and respondent.

KANE, Associate Justice.

Plaintiff Richard M. Frisk appeals from a judgment entered on a directed verdict denying him recovery in a defamation action.

The settled statement submitted on appeal pursuant to rule 7 of the California Rules of Court indicates that appellant was a certificated high school teacher in the Richmond Unified School District and a duly licensed California attorney, while respondent was the appointed superintendent of the Mt. Diablo Unified School District, Concord, California ('Diablo School District') and the secretary of the school board. On August 1, 1967, the Diablo School District held a public school board meeting during which the annual school budget was discussed. But respondent and appellant attended said meeting, the latter in his professional capacity as attorney and counsel for an interested parent and taxpayer. The defamatory words which gave rise to the present action were uttered by respondent when appellant rose to address the meeting on behalf of his client. It is admitted that the comments made by respondent were understood by third persons to be derogatory and defamatory with regard to appellant both as a teacher and attorney. ¹ It is likewise undisputed that the representatives of the local press were present at the meeting and portions of the defamatory statement were republished and reported in the Concord Transcript and the Contra Costa Times which have a large circulation in Contra Costa County where the event took place and where both parties live and work. Appellant requested a public retraction of the derogatory statement; however, respondent failed to publicly retract and instead wrote a letter of apology.

After a five-day jury trial, the trial court granted respondent's motion for a directed verdict on the ground that the defamatory statement was absolutely privileged pursuant to Civil Code, ² section 47, subdivisions 1 and 2, because respondent acted in his capacity as the administrator of the school district and the defamatory words were spoken during a regularly called meeting and in connection with the proceedings.

The principal issue awaiting determination on appeal is whether in the situation here presented respondent was exempt from liability on account of the absolute privilege accorded by section 47.

Section 47 provides in pertinent part that a privileged publication or broadcast is one made: 1. in the proper discharge of an official duty, and 2. 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 both subdivisions 1 and 2 of section 47 is an absolute one because it protects publications made with actual malice or with intent to do harm (Albertson v. Raboff (1956) 46 Cal.2d 375, 379, 295 P.2d 405; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 488, 104 Cal.Rptr. 650; Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 864--865, 100 Cal.Rptr. 656; see also: 3 Rest. Torts, § 591, comment b; Saroyan v. Burkett (1962) 57 Cal.2d 706, 709--710, 21 Cal.Rptr. 557, 371 P.2d 293; White v. State of California (1971) 17 Cal.App.3d 621, 626--628, 95 Cal.Rptr. 175).

Respondent's claim of absolute immunity founded on subdivision 1 is obviously misplaced. ³ The California cases interpreting this provision leave no doubt that the absolute privilege under subdivision 1 is extended only to high ranking federal and state officials such as the President of the United States, governors of the states and territories, the members of the President's cabinet, heads of federal agencies, and comparable state officers (White v. State of California, supra). In defining the high ranking federal and state officials, the California Supreme Court has adopted section 591 of the Restatement of Torts which reads as follows: 'The President of the United States and the Governor of any State or Territory thereof, cabinet officers of the United States and the corresponding officers of any State and Territory thereof are absolutely privileged to publish false and defamatory matter of another in the exercise of an executive function, if the matter has some relation to the executive proceeding in which the officer is acting.' (Saroyan v. Burkett, supra, 57 Cal.2d at p. 710, 21 Cal.Rptr. at p. 560, 371 P.2d at p. 296.) A school superintendent or secretary of a school board is clearly outside the above defined cabinet level state officials.

Turning to respondent's second contention, we concede that the school board meeting in question may be deemed as an official proceeding authorized by law within the meaning of the statute. We pointed out in Ascherman v. Natanson, supra 23 Cal.App.3d at page 865, 100 Cal.Rptr. at page 659, that the phrase 'in any other official proceeding authorized by law' embraced in section 47, subdivision 2, subsection (3), 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 (cf. 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). Respondent aptly notes that a school board is in essence a local governing body. Education Code, section 921, specifically provides that 'Every school district shall be under the control of a board of school trustees or a board of education.' The board of school trustees has been held to be an administrative agency created by statute (Paterson v. Board of Trustees (1958) 157 Cal.App.2d 811, 818, 321 P.2d 825). Consequently, its meetings held pursuant to statutory regulation (cf. Ed.Code, §§ 961--970) may be duly classified as official proceedings authorized by law within the purview of section 47, subdivision 2, subsection (3) and the case authorities thereunder.

The circumstances, however, that a defamatory statement has been made on a privileged occasion does not by itself compel the conclusion that absolute immunity should be granted. In a recent case decided after the filing of the present appeal, we underlined that the doctrine of privileged communications is not a rule but rather a tolerated exception which rests upon public policy. We said 'The obvious Purpose of section 47 is to afford litigants freedom of access to the courts to secure and defend their rights without fear of being harassed by actions for defamation (citations) And to promote the unfettered administration of justice even though as an incidental result it may in some instances provide an immunity to the evil-disposed and malignant slanderer (citations). Thus, the application of the absolute privilege On certain occasions (citation) must be confined within narrow limits and the tendency of the courts is not to extend such limits unless the public policy upon which the privilege rests is found to exist in a new situation (citations).' (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 823--824, 106 Cal.Rptr. 718, 721.) In accordance with these policy principles, we repeatedly emphasized that The absolute privilege attaches only to a publication that has a reasonable relation to the action, is permitted by law, And, more importantly, If it is made to achieve the objects of the litigation (Bradley v. Hartford Acc. & Indem. Co., supra at pp. 824--826, 106 Cal.Rptr. 718).

What has been said relative to judicial proceedings is applicable with equal force to other official proceedings authorized by law, such as the school board meeting in question. Thus, the determinative issue in this case is not whether the defamation took place on a privileged occasion, but whether the defamatory statement was made to achieve the object of the meeting convened to discuss the school budget.

In an attempt to justify his intervention and the defamatory statement made therein, respondent produced evidence at the trial that the meeting was chaired by Dr. Johnson, the vice president of the board, who was inexperienced as a chairman and was unable to control the meeting. Sensing a lack of firmness on the part of the chairman, appellant had risen on several occasions to speak. The meeting became increasingly boisterous and respondent, as secretary of the board, felt compelled to take control of the meeting and restore order.

Although respondent's showing of justification displays a noticeable infirmity upon its face, we express no opinion on whether the evidence produced by respondent would have been sufficient for the jury to find the requisite logical connection between the defamation and the objective of the meeting. In the instant case we are not invited to pass upon the...