Passman v. Torkan

• Decision Date: 26 April 1995
• Docket Number: No. B073478,B073478
• Parties: Sanford M. PASSMAN and Stephen J. Gross, Plaintiffs and Appellants, v. Joseph TORKAN, Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

Page 291

40 Cal.Rptr.2d 291

34 Cal.App.4th 607

Sanford M. PASSMAN and Stephen J. Gross, Plaintiffs and Appellants, v. Joseph TORKAN, Defendant and Respondent.

No. B073478.

Court of Appeal, Second District, Division 7, California.

April 26, 1995.

Sanford M. Passman and Stephen J. Gross, in pro. per., for plaintiffs and appellants.

Morton Minikes, Los Angeles, for defendant and respondent.

JOHNSON, Associate Justice.

Two attorneys representing one party in litigation brought a defamation action against the opposing party based on statements he made in letters to his counsel and to the district attorney. The trial court found the alleged defamatory statements absolutely privileged and dismissed the attorneys' complaint after sustaining defendant's demurrer without leave to amend. We affirm.

FACTS AND PROCEEDINGS BELOW

Defendant and respondent, Joseph Torkan, and Iraj Kermanshahchi (Iraj) were stockholders in a corporation which operated a parking lot near the Los Angeles International Airport. On August 14, 1990, Torkan brought suit against Iraj for dissolution of the corporation and for appointment of a receiver. Torkan claimed Iraj fraudulently failed to report and account for the corporation's gross receipts. This action was ordered consolidated with an action Iraj and the corporation had brought against Torkan.

After the trial court determined Torkan held a 20 percent stock ownership interest in the corporation, Iraj elected in lieu of dissolution to purchase Torkan's interest (Corp.Code, § 2000, subd. (a)). ¹ The trial court appointed three appraisers when Iraj and Torkan could not agree on the fair market value of Torkan's interest. (Corp.Code, § 2000, subd. (c).) The appraisers were directed to ascertain the value of the corporation's assets and the value of the corporation as an on-going business.

In these consolidated actions Torkan was represented by Martin Shapero of the law firm of Shapero and Shapero. Plaintiffs and appellants, Sanford M. Passman and Stephen J. Gross, represented Iraj and the corporation.

During the course of the litigation, Torkan wrote a letter dated June 17, 1992, to his attorney, Martin Shapero. Torkan sent copies of this letter to two of the court appointed appraisers.

On July 17, 1992, appellants brought suit against Torkan for defamation. Their first amended complaint alleged Torkan's letter of June 17, 1992, contained four separate statements libelous of and concerning appellants. These statements are as follows:

(1) "... The letter of Mr. Passman is with the intent to poison the minds of the appraisers with the exception of Mr. Miller, who already has served the purpose of Messrs. Kermanshahchi, Gross, and Passman. Mr. Kermanshahchi, Passman and Gross have done and are doing everything in their powers to mislead the appraisers that the corporation is worth nothing...."

(2) "... Why have Messrs. Kermanshahchi, Gross and Passman vigorously objected and prevented such a fair request? Well, it is obvious; the stealing of cash would have been stopped and more proof of their criminal conspiracy would have been revealed...."

(3) "... All these facts which are documented and can be proven show how this criminal conspiracy against me was planned from the beginning by Mr. Kermanshahchi and the people who assisted him in order to steal my entire interest in the corporation...."

(4) "[T]here has been a conspiracy against me by Mr. Kermanshahchi, and later with the direct help, involvement and guidance of Messrs. Passman and Gross to forge the blank minutes of the corporation, which were signed by me...." ²

These four statements formed the basis for the first four causes of action in the amended complaint.

On May 29, 1991, Torkan wrote a letter addressed to the district attorney's office urging criminal prosecution of Iraj. The letter outlined various allegedly criminal or fraudulent activities undertaken by Iraj and offered documentary and testimonial evidence in support of the allegations. One of Torkan's statements in the May 29, 1991, letter to the district attorney's office was the basis for the fifth cause of action in appellants' amended complaint. This statement is as follows:

"... This man, with the help of two of his crooked attorneys ... have conspired to defraud me...."

Torkan demurred to the first amended complaint on the grounds the litigation and official proceedings privileges of Civil Code section 47, subdivision (b) operated as a complete defense to the causes of action for defamation. ³ The trial court sustained the demurrer without leave to amend and dismissed the complaint. Appellants appeal from the ensuing judgment of dismissal.

DISCUSSION

On appeal from a judgment of dismissal after a demurrer is sustained without leave to amend, "[w]e treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.... Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse; if not, there has been no abuse of discretion and we affirm. The burden of proving such reasonable possibility is squarely on the plaintiff." (Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 809, 266 Cal.Rptr. 360, internal citations and quotation marks omitted.)

As we explain, the alleged defamatory statements in the case at bar are absolutely privileged as publications made in a judicial proceeding or in an official proceeding authorized by law. (Civil Code, § 47, subd. (b).) ⁴ Because the privilege operates as a complete defense to the causes of action raised in the complaint, we conclude the trial court did not abuse its discretion in sustaining the demurrer without leave to amend and in dismissing the complaint. Accordingly, we affirm the judgment.

I. THE FOUR ALLEGEDLY DEFAMATORY STATEMENTS MADE IN TORKAN'S JUNE 17, 1992, LETTER TO HIS ATTORNEY WERE ABSOLUTELY PRIVILEGED AS PUBLICATIONS MADE IN A JUDICIAL PROCEEDING.

Under section 47, a privileged publication or broadcast is one made "(b) In any ... (2) judicial proceeding...." The purpose underlying the immunity conferred by the so-called litigation privilege "is the broadly applicable policy of assuring litigants 'the utmost freedom of access to the courts to secure and defend their rights....' (Albertson v. Raboff [1956] 46 Cal.2d at p. 380 .)" (Rubin v. Green (1993) 4 Cal.4th 1187, 1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044.) Or as restated by the Supreme Court in Silberg v. Anderson (1990) 50 Cal.3d 205, 213, 266 Cal.Rptr. 638, 786 P.2d 365, the purpose of the privilege is to afford litigants "the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions."

To effect these purposes the privilege afforded by section 47, subdivision (b) is held to be absolute in nature. (Silberg v. Anderson, supra, 50 Cal.3d at p. 215, 266 Cal.Rptr. 638, 786 P.2d 365; see also 5 Witkin, Summary of Cal.Law (9th ed. 1988) Torts, § 498, p. 585.) This absolute privilege applies to "virtually all other causes of action, with the exception of an action for malicious prosecution." (Ribas v. Clark (1985) 38 Cal.3d 355, 364, 212 Cal.Rptr. 143, 696 P.2d 637.) In addition, with statutory exceptions not relevant here, section 47, subdivision (b) applies "to all publications, irrespective of their maliciousness." (Silberg v. Anderson, supra, 50 Cal.3d at p. 216, 266 Cal.Rptr. 638, 786 P.2d 365, italics in original; see also 5 Witkin, Summary of Cal.Law (9th ed. 1988) § 498, p. 585.) This is true "even though the publication is made outside the courtroom and no function of the court or its officers is invoked." (Albertson v. Raboff (1956) 46 Cal.2d 375, 381, 295 P.2d 405.)

For communications to be absolutely privileged they must be: "(1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." (Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365.)

Appellants concede Torkan's June 17, 1992, letter to his attorney satisfies the first three requirements. Appellants challenge, however, whether the communications had some connection or logical relation to the action. Underlying this argument, however, appellants nevertheless appear to challenge whether the purpose of the communications was "to achieve the objects of the litigation."

In Silberg v. Anderson, supra, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365, the Supreme Court overruled a line of cases which added an additional requirement the publication "further the interests of justice" to be covered by the absolute privilege. (See, e.g., Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 106 Cal.Rptr. 718.) The court found this requirement inconsistent with numerous decisions holding fraudulent or perjurious communications were nevertheless covered by the privilege. The court noted "the 'interest of justice' requirement would be tantamount to the exclusion of all tortious publications from the privilege, because tortious conduct is invariably inimical to the 'interest of justice.' Thus, the exception would subsume the rule." (50 Cal.3d at p. 218, 266 Cal.Rptr. 638, 786 P.2d 365, italics in original.)

Thus the court held the "requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be...