Hackethal v. Weissbein
| Decision Date | 12 April 1979 |
| Citation | 24 Cal.3d 55,154 Cal.Rptr. 423,592 P.2d 1175 |
| Court | California Supreme Court |
| Parties | , 592 P.2d 1175, 9 A.L.R.4th 791 Clemens A. HACKETHAL, Plaintiff and Appellant, v. Arthur S. WEISSBEIN, Defendant and Respondent. Clemens A. HACKETHAL, Plaintiff and Appellant, v. Irving L. SPRATT, Defendant and Respondent. Clemens A. HACKETHAL, Plaintiff and Appellant, v. J. Lamont MURDOCH, Defendant and Respondent. L.A. 31016. |
Edward J. Horowitz, Los Angeles, and Arthur J. Jaffee, Pomona, for plaintiff and appellant.
Wilson, Borror & Dunn, Lucien A. Van Hulle, San Bernardino, Moore, Graves & Madory and Richard E. Madory, Tustin, for defendants and respondents.
Hassard, Bonnington, Rogers & Huber, Howard Hassard, David E. Willett, Charles F. Bond II, San Francisco, Musick, Peeler & Garrett, James E. Ludlam and Charles F. Forbes, Los Angeles, as amici curiae on behalf of defendants and respondents.
Plaintiff has appealed from judgments of dismissal in three consolidated actions after the trial court sustained demurrers, without leave to amend, on the ground that allegedly defamatory publications were immunized by these words of Civil Code section 47: "A privileged publication . . . is one made . . . (i)n any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law . . . ." 1 The parties agree that the privilege if those words create it would be absolute, not qualified.
The issue here is whether a hearing before the judicial commission of a private medical society is an "official proceeding authorized by law" within the scope of Civil Code section 47.
Plaintiff is a doctor and a specialist in internal medicine. In 1975 he was accused by the public service committee of the San Bernardino County Medical Society (SBCMS) of violating certain principles of ethics of the American Medical Association. Hearings were held before the SBCMS judicial commission, and he was expelled from SBCMS membership. Defendants appeared at the hearing as witnesses and presented derogatory information as to his methods of medical practice.
The first cause of action in each of the three complaints seeks damages on the ground that defendants' testimony was negligently given, in that they did not make reasonable efforts to ascertain the truth and did not reasonably believe that the testimony was warranted by facts known to them. The second cause of action alleges that the testimony was motivated by malice.
Was the medical society hearing "official"?
It is argued here that the SBCMS hearing did constitute an "official proceeding authorized by law" because the members of even a private association may not be expelled without charges, notice, and hearing. (See Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541, 116 Cal.Rptr. 245, 526 P.2d 253.)
Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 100 Cal.Rptr. 656 held that a hearing by the directors of a public hospital district on a doctor's application for staff privileges was an official proceeding authorized by law. The court inquired as to "(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 . . . ." (23 Cal.App.3d at p. 866, 100 Cal.Rptr. at p. 659.)
In Ascherman as in nearly all the pertinent cases the body conducting the hearing was a government agency. (See Imig v. Ferrar (1977) 70 Cal.App.3d 48, 138 Cal.Rptr. 540 (police department); Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 116 Cal.Rptr. 781 (school board); King v. Borges (1972) 28 Cal.App.3d 27, 104 Cal.Rptr. 414 (real estate commissioner); Wyatt v. Tahoe Forest Hospital District (1959) 174 Cal.App.2d 709, 345 P.2d 93 (public district).)
Goodley v. Sullivant (1973) 32 Cal.App.3d 619, 108 Cal.Rptr. 451 seems to be the only case that equates private with public. The hearings there were before committees of a private hospital to consider suspension of a doctor's privileges. The court ruled that Ascherman should apply to private hospitals because Business and Professions Code section 2392.5 requires every hospital having five or more doctors to promulgate rules for the operation of the hospital, including rules to help assure the competency of the medical staff. The mere fact that a statute requires the creating of committees or other groups does not, however, mean that each body so formed is "official." The committees of a private hospital are not government agencies. (Cf. Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1255, fn. 35.) The requirement in subdivision (c) of section 2392.5 that the medical staff be "self-governing" also indicates that the Legislature had no intent to create "official" bodies.
Katz v. Rosen (1975) 48 Cal.App.3d 1032, 121 Cal.Rptr. 853 ruled that the hearing by a local bar association to consider the expulsion of one of its members is not official. McMann v. Wadler (1961) 189 Cal.App.2d 124, 11 Cal.Rptr. 37 similarly ruled that a proceeding by the directors of a dairymen's association is not official. The court stated that an (189 Cal.App.2d at p. 129, 11 Cal.Rptr. at p. 41.)
Legislative history
The Civil Code's original section 47 used the adjective "official" only in subdivision 1 ("official duty") and subdivision 4 ("official proceeding"). Section 47, subdivision 2 read, "In testifying as a witness in any proceeding authorized by law . . . etc."
In the history of the 1873-1874 amendment that affects our analysis here we find no explanation of the amendment. What the amenders did was to revise section 47, subdivision 2 to read, "in any legislative or judicial proceeding, or in any other Official proceeding authorized by law . . . ." (Italics added.) The intent of adding the word "official may well have been to deny the absolute privilege in nongovernment proceedings. 2 We could hardly construe the words "official duty" in section 47, subdivision 1, unchanged since 1872, to include nongovernment duties. The words of section 47, subdivision 2 "in any . . . official proceeding" similarly merit no extension. 3
Does Civil Code section 43.8 imply that section 47, subdivision 2's absolute privilege extends to the hearings described in section 43.8?
Section 43.8, enacted in 1974 (and amended in 1975, 1976, and 1977), extends a qualified privilege to communications that are "intended to aid in the evaluation of the qualifications, (etc.)" of a doctor if there is not represented as true any matter not reasonably believed to be true and if the communications are addressed "to any hospital, hospital medical staff, professional society, medical or dental school, professional licensing board or division, committee or panel of such licensing board, peer review committee, or underwriting committee." 4 (See also § 43.7, regarding action "without malice.") The protection of section 43.8 is "(i)n addition to the privilege afforded by Section 47," and "(t)he immunities afforded . . . shall not affect the availability of any absolute privilege which may be afforded by Section 47."
Since the Legislature in 1974 apparently intended to create additional immunity, the draftsmen must have concluded that at least some proceedings covered by section 43.8 until then had not been protected by section 47, subdivision 2. The intent seems to have been (1) to provide immunity to bodies not previously protected, and (2) to provide only a qualified immunity for communications made to a variety of medical groups.
The hearing in our case was a section 43.8 hearing, not a section 47, subdivision 2 "official proceeding." The enactment of section 43.8 makes sense because section 47, subdivision 2 applies exclusively to government agencies. The new section extends a qualified privilege to communications made to private groups; it does not imply that those groups benefit too from section 47, subdivision 2's absolute privilege.
The trial court should not have sustained the demurrers. The judgments are reversed. 5
The sole issue presented by this case is whether a doctor who was the subject of a local medical association "peer review" disciplinary proceeding may maintain a defamation action against a witness who testified against him at the association's quasi-judicial hearing. It has long been settled both in this state and throughout the country that the testimony of a witness at a judicial proceeding is absolutely privileged and may not be the basis of a defamation action, and just three years ago, in Westlake Community Hosp. v. Superior Court 1976) 17 Cal.3d 465, 131 Cal.Rptr. 90, 551 P.2d 410, this court, in a unanimous decision expressly concluded that this absolute privilege applies to statements made in the course of quasi-judicial proceedings conducted by a medical "peer review" authority without regard to whether the medical body was nominally a governmental or nongovernmental entity.
In arriving at a contrary conclusion in the present case, the majority opinion gives extremely short shrift to our recent, unanimous decision in Westlake, mentioning the case only in passing in a brief footnote at the conclusion of the opinion. (Ante, p. 427 of 154 Cal.Rptr. fn. 5, at p. ---- of ---...
To continue reading
Request your trial
-
Eisenberg v. Alameda Newspapers, Inc.
...by writ of mandate. (Slaughter v. Friedman (1982) 32 Cal.3d 149, 156, 185 Cal.Rptr. 244, 649 P.2d 886; Hackethal v. Weissbein (1979) 24 Cal.3d 55, 59-61, 154 Cal.Rptr. 423, 592 P.2d 1175; Cuenca v. Safeway San Francisco Employees Fed. Credit Union Nevertheless, as the parties have framed th......
-
Gantt v. Sentry Ins.
...noted that "in nearly all the pertinent cases the body conducting the hearing was a government agency." (Hackethal v. Weissbein (1979) 24 Cal.3d 55, 59, 154 Cal.Rptr. 423, 592 P.2d 1175.) The privilege attaches not only to communications made during the hearing conducted by the governmental......
-
McDermott v. Hughley
...434 A.2d 547 we noted examples of administrative proceedings not giving rise to absolute privilege:E.g., Hackethal v. Weissbein, 24 Cal.3d 55, 154 Cal.Rptr. 423, 592 P.2d 1175 (1979) (proceedings before judicial commission of private medical society not an official proceeding authorized by ......
-
Binkewitz v. Allstate Ins. Co.
...was not given in a proceeding satisfying the standard of an "official proceeding authorized by law." Hackethal v. Weissbein, 24 Cal.3d 55, 154 Cal.Rptr. 423, 592 P.2d 1175 (1979). Appraisals are in some ways like arbitrations, but in many ways they are dissimilar. The differences were discu......