Imig v. Ferrar

• Decision Date: 24 May 1977
• Citation: 138 Cal.Rptr. 540,70 Cal.App.3d 48
• Court: California Court of Appeals Court of Appeals
• Parties: Kurt IMIG, Plaintiff and Appellant, v. Jose FERRAR, Defendant and Respondent. Civ. 48819.

Page 540

138 Cal.Rptr. 540

70 Cal.App.3d 48

Kurt IMIG, Plaintiff and Appellant, v. Jose FERRAR, Defendant and Respondent.

Civ. 48819.

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

May 24, 1977.

Dryden, Harrington & Swartz, George J. Franscell, Dale B. Goldfarb, and Steven Lincoln Paine, Los Angeles, for plaintiff and appellant

Bonelli, Malone, Wood & Lyden, and Glen E. Tucker, Encino, for defendant and respondent.

ASHBY, Associate Justice.

Plaintiff Imig filed a complaint against various defendants alleging assault and battery, and slander. A cause of action for malicious prosecution was added in a first amended complaint. This appeal involves only defendant Ferrar, who was named in the third and fourth causes of action (slander and malicious prosecution). As to these counts, the trial court sustained defendant's demurrer to the first amended complaint without leave to amend. Plaintiff appeals from the order of dismissal subsequently entered. (Code Civ.Proc., §§ 581, subd. 3, 581d.)

According to the allegations of the assault and battery counts which are not directly involved here, plaintiff, a police officer for the City of Los Angeles, was in the Van Nuys store of Big Five Department Store (another defendant), and was assaulted by Goldstein (another defendant), an employee of Big Five. In the third count slander, it is alleged that plaintiff, acting in his official capacity as a police officer, requested aid from defendant Ferrar, who was a 'manager, employee, and agent' of defendant Big Five.

Ferrar 'did subsequently file formal charges against plaintiff KURT IMIG that plaintiff KURT IMIG was harassing employees of the defendant BIG FIVE DEPARTMENT STORE. ( ) That as a result of such charges, to wit, Charge 1, pertaining to profanity and brutality, and Charge 2, pertaining to conduct unbecoming an officer, plaintiff was subjected to a Los Angeles Police Department official investigation, numerous interrogations and scientific testing by the Los Angeles Police Department. ( ) That the statement and charges made by the defendants, as well as the allegation in the harassment report, were made by the defendants with the specific knowledge on their parts that said statements and charges were untrue and made by the defendants to vex, harass and annoy the plaintiff in his occupation as a police officer . . .. ( ) The aforementioned slanderous utterances and misrepresentations were made with actual malice and in a wilful, wanton and reckless manner . . .. ( ) In uttering the slanderous words and misrepresentations hereinabove alleged, defendants acted with a state of mind arising from hatred or ill-will toward plaintiff, maliciously, with a conscious indifference, and with knowledge that said uttered words were slanderous.'

The fourth count, for malicious prosecution, was not included in the original complaint. The demurrer of Ferrar and Big Five to the third cause of action in the original complaint was on grounds of failure to state a cause of action, and uncertainty, in that the complaint did not specify when, where, or with whom the 'formal charges' were filed, and did not specify the alleged slanderous language. In defendant's memorandum of points and authorities it was argued that no cause of action was stated because the making of a complaint to the Los Angeles Police Department concerning conduct of an officer was protected by the absolute privilege for a publication made in an 'official proceeding.' (Civ.Code, § 47, subd. 2.)

The record on appeal does not contain the ruling of the trial court on the demurrers to the original complaint. However, plaintiff thereafter filed his first amended complaint. There was virtually no change in the allegations of the third cause of action. However, a fourth cause of action for malicious prosecution was added, as follows: '(The following cause of action is an alternative Ferrar and Big Five again demurred to the third cause of action on the same grounds as before, that the statements were absolutely privileged, and that the words were not set forth.

cause of action. It will not be effective unless there is a finding that a Police Board of Rights or internal affairs investigation is an official proceeding within the meaning of Civil Code Section 47(2).) ( ) (Defendant Ferrar), as manager, employee and agent of BIG FIVE DEPARTMENT STORE, . . . filed formal charges against plaintiff KURT IMIG, accusing plaintiff of harassing employees of defendant BIG FIVE DEPARTMENT STORE. . . . As a result of said charges, to wit, Charge 1 pertaining to profanity and brutality, and Charge 2, pertaining to conduct unbecoming an officer, an ivestigation was undertaken by the Los Angeles Police Department into plaintiff's ability to continue in his employment with the Police Department. This official investigation undertaken by the Police Department was finally terminated in plaintiff's favor by finding that all of the defendants' accusations were totally groundless. ( ) Defendants, and each of them, acted without reasonable or probable cause in filing the above-alleged formal charges and in instituting the investigation. ( ) Defendants, and each of them, in filing the above-alleged charges, acted intentionally, wilfully, wantonly and maliciously for the sole purpose of harassing plaintiff herein. The defendants, and each of them, knew, at the time the formal charges were filed, that they were untrue and not supportable by any evidence . . . ( ) (Defendants) acted with a state of mind arising from hatred or ill-will towards plaintiff, with the intent to vex, harass and injure plaintiff . . ..'

Ferrar and Big Five also demurred to the malicious prosecution count, on grounds of failure to state a cause of action, and uncertainty. It was argued that 'Plaintiff carefully refrained from stating who the formal charges were filed with. The main reason obviously was to forestall the obvious additional defense to the slander claim that charges filed with any official administrative body are absolutely privileged . . . ( ) However, this refusal to name the body with whom the charges were made creates a fatal defect as to the purported fourth cause of action, purportedly based on malicious prosecution. To charge malicious prosecution it must be shown that there were charges made before some judicial body. The mere fact that an investigation was made by the police department does not set forth any prosecution before any judicial body.'

In opposition to the demurrers, plaintiff argued that defendants 'cannot have it both ways; if their remarks are privileged because uttered within the course of an official proceeding, then their malicious institution of that proceeding, without probable cause, subjects them to liability for malicious prosecution.'

However, the trial court sustained the demurrers to both causes of action without leave to amend. At the hearing, the court stated that its urling on the third cause of action was based on privilege. As to the fourth cause of action, the court stated: 'But I am not certain that it is a prosecution, and it is going to be just as easy for you to get a definitive ruling on the fourth as the third. You might as well do it.' ¹

DEFAMATION

In the third cause of action it is alleged that defendant filed formal charges against plaintiff 'pertaining to profanity and brutality (and) conduct unbecoming an officer,' which caused plaintiff to be 'subjected to a Los Angeles Police Department official investigation, numerous interrogations and scientific testing by the Los Angeles Police Department.' We agree with That section renders absolutely privileged (Washer v. Bank of America, 21 Cal.2d 822, 832, 136 P.2d 297, 303) a publication made 'In any (1) legislative or (2) judicial proceeding, or (3) In any other official proceeding authorized by law; . . .' (Emphasis added.) It is now well established that this privilege extends to transactions of administrative boards and quasi-judicial proceedings. (King v. Borges, 28 Cal.App.3d 27, 31--32, 104 Cal.Rptr. 414 (investigation conducted by Real Estate Commissioner); Ascherman v. Natanson, 23 Cal.App.3d 861, 865, 100 Cal.Rptr. 656 (hospital district board); Goodley v. Sullivant, 32 Cal.App.3d 619, 625, 108 Cal.Rptr. 451 (private hospital board established pursuant to Bus. & Prof. Code, § 2392.5); Frisk v. Merrihew, 42 Cal.App.3d 319, 324, 116 Cal.Rptr. 781 (school board); Martin v. Kearney, 51 Cal.App.3d 309, 311, 124 Cal.Rptr. 281 (high school principal's investigation of complaint about teacher, pursuant to school board rules).)

the trial court ² that no cause of action was stated because the complaint shows on its face that the alleged publications were absolutely privileged under Civil Code section 47, subdivision 2.

Procedures for the discipline, suspension, or removal from office of police officers of the City of Los Angeles are specified in section 202 of the Los Angeles City Charter and section 4.186 of the Los Angeles Administrative Code, and are therefore official proceedings authorized by law. (See Ascherman v. Natanson, supra, 23 Cal.App.3d at p. 866, 100 Cal.Rptr. 656; Goodley v. Sullivant, supra; Martin v. Kearney, supra.)

Plaintiff argues that the original publication which caused the investigation to be initiated was not itself part of an official proceeding, but was preliminary thereto and not under oath, and that therefore the absolute privilege should not apply. But the California authorities have held that 'a communication to an official administrative agency, which communication is designed to prompt action by that agency, is as much a part of the 'official proceeding' as a communication made after the proceedings have commenced.' (King v. Borges, supra, 28 Cal.App.3d at p. 34, 104 Cal.Rptr. at p. 417; Martin v. Kearney, supra, 51 Cal.App.3d at p. 311, 124 Cal.Rptr. 281; Ascherman v. Natanson, supra, 23 Cal.App.3d at p. 865, 100 Cal.Rptr. 656.) In King, the absolute...