Johnson v. Symantec Corp.
| Decision Date | 05 August 1999 |
| Docket Number | No. C-97-20826 JF.,C-97-20826 JF. |
| Citation | 58 F.Supp.2d 1107 |
| Court | U.S. District Court — Northern District of California |
| Parties | Michael C. JOHNSON, Plaintiff, v. SYMANTEC CORPORATION, et al., Defendants. |
Theresa L. Pfeiffer, Los Gatos, CA, Chris A. Caroll, San Jose, CA, for plaintiff.
Kenneth D. Simonicini, Kerri A. Ridley, Simoncini & Associates, Attorneys at Law, San Jose, CA, for defendant.
ORDER GRANTING DEFENDANT BRUNTON'S MOTION FOR SUMMARY JUDGMENT
Defendant Thomas Brunton's motion for summary judgment, argued May 17, 1999, requires the Court to address a split of authority concerning whether police reports constitute official communications entitled to an absolute privilege pursuant to California Civil Code § 47. The Court concludes that an absolute privilege is applicable and thus will render judgment in favor of Brunton.1
This case arises from a workplace dispute between Plaintiff and Brunton, who was Plaintiff's subordinate. The dispute may or may not have culminated with Johnson striking Brunton in the chest with both fists. Whether or not Johnson actually hit Brunton, Brunton told medical providers he had been hit in the chest and also reported to law enforcement officers that Johnson had hit him. Johnson then filed the instant lawsuit, claiming that he lost his job and suffered various other adverse consequences because of Brunton's allegedly false statements.
Brunton attacks both aspects of Plaintiff's defamation cause of action by arguing that (1) statements made to medical providers did not identify Johnson and therefore could not have been defamatory; and (2) statements made to law enforcement officers were absolutely privileged as "official communications" pursuant to California Civil Code § 47(b)(3). Johnson concedes that Brunton's statements to medical providers are not actionable because the medical records do not reflect that Brunton identified Johnson such that "a third party [could] understand[] the [statements'] applicability to plaintiff." Neary v. Regents of University of California, (1986) 185 Cal.App.3d 1136, 230 Cal.Rptr. 281. The sole remaining question, therefore, is whether a police report is subject to an absolute privilege or only a qualified privilege under California Civil Code § 47.
A motion for summary judgment2 should be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party bears the initial burden of informing the Court of the basis for the motion, and identifying the portions of the pleadings, depositions, answers to interrogatories, admissions, or affidavits which demonstrate the absence of a triable issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
In the instant case, whether Brunton has met his moving burden depends entirely upon the Court's interpretation of California Civil Code § 47. If section 47 mandates the application of absolute privilege to the category of communication at issue, then Brunton's burden is both met and unrebutted.
As noted above, judgment for Brunton is warranted only if California Civil Code § 47 cloaks with absolute privilege relevant communications to law enforcement entities. The statute provides in part as follows:
A privileged publication or broadcast is one made: [¶¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law .... [¶] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested. ...
Thus if a police report is properly considered an "official proceeding authorized by law," it is subject to absolute privilege under section 47(b)(3). Otherwise, the police report at issue in this case only could be privileged under section 47(c), applicable to communications made "without malice" (in which case Brunton has provided no evidentiary basis for granting summary judgment).
"When interpreting state law, federal courts are bound by decisions of the state's highest court." Nelson v. City of Irvine, 143 F.3d 1196, 1206 (9th Cir.1998). Here, there are no California Supreme Court cases addressing whether police reports are properly categorized under section 47(b)(3) or under section 47(c), and the issue is the subject of a split of authority among the California Courts of Appeal.3 "Where the state's intermediate appellate courts have reached conflicting results, the federal court must ascertain for itself the most authoritative assessment of state law." Air-Sea Forwarders v. Air Asia Company, 880 F.2d 176, 186 (9th Cir.1989).
The line of cases cloaking police reports with the absolute privilege of section 47(b)(3) may be traced to Williams v. Taylor, 129 Cal.App.3d at 745, 181 Cal.Rptr. 423. The Williams court expressed a dual rationale for finding an absolute privilege. First, police reports were found to satisfy the "official proceeding" requirement of section 47 because "a communication [d]esigned to prompt action by [an official] entity is as much a part of an `official proceeding' as a communication made after an official investigation has commenced." Id. at 753, 181 Cal.Rptr. 423. Second, the court opined that as a matter of public policy, members of the community should feel at liberty to report suspected criminal activities without fear of civil liability. Id. at 753, 181 Cal.Rptr. 423.
The other side of the split is represented by Fenelon v. Superior Court, (1990) 223 Cal.App.3d 1476, 273 Cal.Rptr. 367. The Fenelon court criticizes the decision in Williams for ignoring contrary authority from other jurisdictions (where qualified privilege is the rule) and for ignoring a perceived requirement that the "official proceeding" of section 47 must be of a judicial or quasi-judicial nature. The latter point is buttressed in Fenelon by the argument that notice and hearing procedures are required to offset the potential for abuse inherent in any absolute privilege.
This Court concludes that the California Supreme Court would adopt the position taken in Williams. The Court reaches this result because California's public policy, as explicated both by its courts and by its Legislature, favors the application of an absolute privilege, because existing Ninth Circuit authority addressing the identical issue is in accord, and because the policy arguments in Fenelon ultimately are unpersuasive.
Of great significance to this Court's interpretation of section 47 is the fact that the great majority of California's intermediate appellate courts have tended to conclude, and the California Legislature appears to have presumed without saying so explicitly, that section 47(b)(3) applies to police reports. The fact that the majority of California Courts of Appeal which have considered the issue have tended to agree with Williams, (see, e.g., Cabesuela v. Browning-Ferris Industries, (1998) 68 Cal.App.4th 101, 80 Cal.Rptr.2d 60; Passman v. Torkan, (1995) 34 Cal.App.4th 607, 40 Cal.Rptr.2d 291; Hunsucker v. Sunnyvale Hilton Inn, (1994) 23 Cal.App.4th 1498, 28 Cal.Rptr.2d 722) must be afforded some weight in predicting how California's highest court would rule. The Passman court's observation that "[t]o date no reported appellate decision has followed the reasoning and rationale of Fenelon," should not be taken lightly. Passman, 34 Cal.App.4th at 618, 40 Cal.Rptr.2d 291.4
Moreover, Cabesuela and Hunsucker are significant because they stem from trial court decisions rendered by the Santa Clara Superior Court, from whence the instant case was removed. A decision in this case contradicting the findings of absolute privilege in Cabesuela and Hunsucker would constitute a potential incentive for litigants in California's Sixth District to forum shop, comparing the legal stock of the state and federal courts.5 A finding by this Court of qualified privilege would therefore be in tension with the policy considerations delineated in Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
The applicability of absolute privilege to communications made in the context of ongoing governmental investigations into suspected wrongdoing is undisputed, except for the contrary implication of Fenelon. See, e.g., Braun v. Bureau of State Audits, (1998) 67 Cal.App.4th 1382, 1388-89, 79 Cal.Rptr.2d 791. The relevant inquiry in this case simply is whether there should be any difference in the treatment afforded to pre-investigation communications intended to trigger official action. Research reveals that even this narrow question has already been answered in the affirmative by California courts. See King v. Borges, (1972) 28 Cal.App.3d 27, 34, 104 Cal.Rptr. 414; accord, Braun, 67 Cal. App.4th 1382, 1390, 79 Cal.Rptr.2d 791; Imig v. Ferrar, (1977) 70 Cal.App.3d 48, 138 Cal.Rptr. 540.
The conclusion that absolute privilege applies to police reports is further bolstered by an examination of how the Legislature otherwise has chosen to deal with the potential for citizen abuse of law enforcement mechanisms. For instance, Penal Code § 11172 explicitly causes persons filing knowingly false child abuse reports to be "[civilly] liable for any damages caused." False police reports of child molestation thus are excepted from the absolute privilege of Civil Code 47 to avoid stripping all meaning from the liability provision of Penal Code § 11172. Begier v. Strom, (1996) 46 Cal.App.4th 877, 54 Cal.Rptr.2d 158. That the Legislature saw fit explicitly to impose liability for knowingly false publications of child abuse is evidence of its belief that such...
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