Johnson v. Superior Court

• Decision Date: 15 June 1994
• Docket Number: No. B082603,B082603
• Citation: Johnson v. Superior Court, 31 Cal.Rptr.2d 199, 25 Cal.App.4th 1564 (Cal. App. 1994)
• Court: California Court of Appeals
• Parties: Rhea E. JOHNSON et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent, Michael GASS, Real Party in Interest.

Page 199

31 Cal.Rptr.2d 199

25 Cal.App.4th 1564

Rhea E. JOHNSON et al., Petitioners, v.The SUPERIOR COURT of Los Angeles County, RespondentMichael GASS, Real Party in Interest.

No. B082603.

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

June 15, 1994.

As Modified June 24, 1994.

Rehearing Denied July 11, 1994.

Review Denied Sept. 8, 1994.

Daniel E. Lungren, Atty. Gen., Robert H. Francis, Supervising Deputy Atty. Gen., and Joel A. Davis, Deputy Atty. Gen., for petitioners.

No appearance for respondent.

Russell Iungerich, Los Angeles, for real party in interest.

ARMSTRONG, Associate Justice.

Civil Code section 43.8¹ provides civil immunity for a person who communicates information "intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts."In this original proceeding, we hold that section 43.8 bars a malicious prosecution action filed by a psychologist against two individuals who served as expert consultants in connection with disciplinary proceedings before the California Board of Psychology and Board of Behavioral Science Examiners("the Boards").

FACTS AND PROCEDURAL HISTORY

In 1991, the Boards filed disciplinary proceedings against Michael Gass, Ph.D.("plaintiff"), a licensed psychologist, clinical social worker and marriage, family and child counselor.The Boards accused plaintiff of failing to warn one of his patients that her husband had threatened to kill her (which he subsequently did), and failing to adequately supervise an apprentice clinical social worker.Petitioners, who are also psychologists, served as expert consultants to the Boards.After disciplinary hearings were conducted, the Boards determined that there was not adequate cause to discipline plaintiff.

In his First Amended Complaint, to which petitioners unsuccessfully demurred, plaintiff alleges that petitioners, after reading "limited information furnished to them by the Boards," rendered expert opinions to the Boards' enforcement staff in which petitioners"advocated, instigated and encouraged the procurement of the accusations filed against plaintiff GASS by the two Boards even though [petitioners] lacked probable cause for belief that there was a basis for an administrative prosecution against plaintiff GASS."According to plaintiff, petitioners were unfamiliar with the most recent statutory and case law on "standard of care issues relating to a psychotherapist's duty to warn third parties of serious threats of violence by a patient," even though they had held themselves out to be experts in that area.

In their demurrers to the First Amended Complaint, petitioners argued that plaintiff could not state a cause of action for malicious prosecution because the disciplinary proceedings were filed by the Boards, not petitioners.(Hogen v. Valley Hospital(1983)147 Cal.App.3d 119, 125, 195 Cal.Rptr. 5;Stanwyck v. Horne(1983)146 Cal.App.3d 450, 461, 194 Cal.Rptr. 228.)Petitioners also asserted that even if their opinions were instrumental to the filing of the disciplinary proceedings against plaintiff, they were immune from civil liability under Civil Code section 43.8.

The respondentcourt, ruling only on the immunity issue, concluded that the immunity provided by section 43.8 was conditional and not absolute.The court overruled the demurrers because the First Amended Complaint, as pleaded, was sufficient to state a cause of action for malicious prosecution, assuming section 43.8 did not provide absolute immunity.

We conclude the court should have sustained the demurrers, without leave to amend.A demurrer is proper where the complaint fails to state a cause of action (Code Civ.Proc., § 430.10, subd. (e)), or where it discloses a defense that would bar recovery.(Weil & Brown, Cal. Practice Guide--Civ. Pro. Before Trial, p 7:9.)In the present case, section 43.8 affords petitioners a complete defense to the action.Further, under the rule stated in Hogen and Stanwyck, supra, plaintiff did not state a cause of action for malicious prosecution.

DISCUSSION

"The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action."(Sheldon Appel Co. v. Albert & Oliker(1989)47 Cal.3d 863, 871, 254 Cal.Rptr. 336, 765 P.2d 498.)In Hardy v. Vial(1957)48 Cal.2d 577, 581, 311 P.2d 494, the court held that an action for malicious prosecution may be founded upon the institution of a civil proceeding before an administrative agency.The Hardy court, relying upon section 680 of the Restatement of Torts, held that "[o]ne who initiates or procures the initiation of civil proceedings against another before an administrative board which has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if (a) the proceedings are initiated (i) without probable cause to believe that the charge or claim on which the proceedings are based is well founded, and (ii) primarily for a purpose other than that of securing appropriate action by the board, and (b) the proceedings have terminated in favor of the person against whom they are brought."(Id. at p. 580, 311 P.2d 494.)

Hogen and Stanwyck placed an additional pleading burden upon the plaintiff in a malicious prosecution case based upon the favorable termination of an administrative proceeding.Those cases held that since it is the administrative body, and not the individual initiating the complaint, which actually files the disciplinary proceeding, a cause of action for malicious prosecution will not lie if the administrative body conducts an independent preliminary investigation prior to initiating disciplinary proceedings.

Even if a plaintiff clears these hurdles by artful pleading, however, section 43.8 provides an absolute defense to the action where the requirements of that section have been met.Section 43.8 provides in pertinent part:

"In addition to the privilege afforded by Section 47, there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of the communication of information in the possession of such person to any ... professional licensing board or division, committee or panel of such licensing board ... when such communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts.The immunities afforded by this section and by Section 43.7 shall not affect the availability of any absolute privilege which may be afforded by Section 47."

Section 43.8 was amended in 1990 as part of SB 2375, which implemented a comprehensive reform of this state's system of discipline against medical practitioners.The Legislature declared that the physician discipline system then in effect was "inadequate to protect the health, safety, and welfare of the people of California against incompetent or impaired physicians."The Legislature further declared that its intent in enacting SB 2375 was to restructure and improve the discipline system of physicians and allied health care professionals by "creating a more expeditious and efficient adjudicatory system and providing it the adequate resources for its performance."(Stats.1990, Ch. 1597, § 1.)²

Prior to the enactment of SB 2375, section 43.8 provided for conditional immunity only.The section read in pertinent part: "In addition to the privilege afforded by Section 47, there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of the communication of information in the possession of such person to any ... professional licensing board or division, ... when such communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts and does not represent as true any matter not reasonably believed to be true."The highlighted language was deleted by SB 2375.

The Legislative history of SB 2375 supports petitioners' claim that the Legislature intended to make the immunity conferred by section 43.8 absolute rather than conditional.One proponent of absolute immunity was the Medical Board of California, the agency charged with implementing the reformed disciplinary system.In an April 27, 1990 letter to the bill's author, the Board's Director stated that the objective of deleting the conditional language quoted above was to "[c]onvert a conditional immunity to absolute immunity."A companion bill, AB 3563, sponsored by the California Medical Association(CMA), duplicated the immunity language of SB 2375.The CMA's analysis of AB 3563 set forth in a May 9, 1990 report to the Chairman of the Senate Judiciary Committee, states, "This provision [the proposed amendmen...