Pettitt v. Levy

• Citation: 28 Cal.App.3d 484,104 Cal.Rptr. 650
• Parties: William H. PETTITT et al., Plaintiffs and Appellants, v. Herbert LEVY, Jr., et al., Defendants and Respondents. Civ. 1530.
• Decision Date: 01 November 1972
• Court: California Court of Appeals

Page 650

104 Cal.Rptr. 650

28 Cal.App.3d 484

William H. PETTITT et al., Plaintiffs and Appellants, v. Herbert LEVY, Jr., et al., Defendants and Respondents.

Civ. 1530.

Court of Appeal, Fifth District, California.

Nov. 1, 1972.

[28 Cal.App.3d 486] Leonard C. Hoar, Jr., Fresno, for plaintiffs-appellants.

Andrews, Andrews, Thaxter, Jones & Baxter, and James F. Thaxter, Fresno, for defendants-respondents.

OPINION

GEO. A. BROWN, Associate Justice.

The disposition of this lawsuit depends upon the application of the absolute privilege stated in Civil Code section 47, subdivision 2, ¹ to the factual allegations in the first amended complaint. The trial court determined the privilege to be applicable and sustained defendants' demurrer to the first amended complaint without leave to amend. ²

For the purpose of testing the question of law raised all material issuable facts properly pleaded in the complaint are assumed to be true. (Witkin, Cal. Procedure, Pleading, § 800, p. 2413.)

Plaintiffs were the owners of the real property and buildings located thereon at 3115--3117 North Wilson Avenue, Fresno. In 1964 they learned 3117 North Wilson had a nonconforming right of use for C--1 retail commercial. In August 1964 they sought and obtained a building permit from the city for the purpose of altering the premises, both at 3115 and 3117 North Wilson, for use as a beauty salon, and thereafter invested approximately $20,000 in the remodeling-conversion job. The permit for 3115 North Wilson was apparently issued in error.

On May 11, 1967, a Fresno city inspector ascertained that the two buildings had been connected and gave plaintiffs five days' notice to obtain a permit for 3115 North Wilson. To do so it was necessary that they obtain a C--1 variance for that address. They made application for such a zoning variance to the Fresno Planning Commission and the City Council. The request was finally denied by the council on January 2, 1969, and plaintiffs were directed to reconvert the premises at 3115 North Wilson to residential use.

The amended complaint alleges four causes of action for damages sounding in (1) fraud, (2) negligent misrepresentation, (3) negligence, and (4) intentional infliction of mental distress. The amended complaint further alleges that between June 1967 and January 2, 1969, the defendants conspired together and wilfully entered into a scheme to injure plaintiffs and to drive plaintiffs out of their beauty salon business or, in the alternative, to wrongfully deprive plaintiffs of the use of 3115 North Wilson as a part of said business, 'by initiating and pursuing action against plaintiffs before the government of the City of Fresno.' The amended complaint continues, '. . . that defendants, . . . in pursuance of said conspiracy and scheme did the acts and things herein alleged and all of said acts and things were participated in and done by each and all of the defendants, . . . or by one or more of them as steps in said conspiracy and by unlawful means did prepare and submit to defendant City of Fresno a false or forged building permit pertaining to plaintiff's business premises, which permit omitted the street address of 3115 N. Wilson as contained in the original building permit. Defendants, . . . or one or more of them in pursuant of said conspiracy, did submit said forged building permit as a copy of the original and true building permit to the Fresno City Planning Commission and the Fresno City Council in order to deny plaintiffs the use of 3115 N. Wilson as a part of plaintiff's beauty salon.'

Each of the four counts incorporates these allegations by reference and by necessary language variation to fit the theory of the particular count makes these same allegations the basis of the relief sought.

The crucial allegations, therefore, upon which all counts are based and the only acts alleged to have been committed pursuant to the alleged conspiracy are the preparation and submission of a false or forged building permit to the City of Fresno, its officers and Planning Commission.

Furthermore, each of the causes of action alleges the damages to have been proximately caused by the city having considered said false or forged permit resulting in the denial of a zoning variance and the destruction of plaintiffs' business.

A succinct summary of the public policy supporting the privilege contained in Civil Code section 47, subdivision 2, is set forth in Kachig v. Boothe (1971) 22 Cal.App.3d 626, at page 641, 99 Cal.Rptr. 393, at page 403:

'Underlying the recognition of this privilege is the important public policy of affording the utmost freedom of access to the courts. (Citations.) The privilege is accorded not only to parties but to witnesses, even where their testimony is allegedly perjured and malicious. (Citations.) 'The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.' (Citation.)'

The privilege is an absolute one because it protects publications made with actual malice or with the intent to do harm. (Albertson v. Raboff (1956) 46 Cal.2d 375, 379, 295 P.2d 405; Rader v. Thrasher (1972) 22 Cal.App.3d 883, 887, 99 Cal.Rptr. 670)

Any publication made in a city planning commission or city council proceedings is within the protection of that section though the proceedings are not strictly judicial. (Whelan v. Wolford (1958) 164 Cal.App.2d 689, 331 P.2d 86; Harnish v. Smith (1956) 138 Cal.App.2d 307, 291 P.2d 532.) The privilege extends to persons who are not parties but who are in the position of the defendants herein, being witnesses or interested members of the public desiring to oppose the granting of a variance to plaintiffs. (Rader v. Thrasher, supra, 22 Cal.App.3d 883, 888, 99 Cal.Rptr. 670.)

Although the application thereof usually arises in the context of a defamation action, it is equally applicable to other actions, with the sole exception of an action for malicious prosecution. (Albertson v. Raboff, Supra, 46 Cal.2d 375, 382--384, 295 P.2d 405; Thornton v. Rhoden (1966) 245 Cal.App.3d 80, 99, 53 Cal.Rptr. 706; Kachig v. Boothe, Supra, 22 Cal.App.3d 626, 640--641, 99 Cal.Rptr. 393.)

The absolute privilege attaches to any publication that has any reasonable relation to the action and is made to achieve the objects of the litigation even though published outside the courtroom and no function of the court or its officers is involved. The publication need not be pertinent, relevant or material in a technical sense to any issue if it has some connection or relation to the proceedings. (Thornton v. Rhoden, Supra, 245 Cal.App.2d 80, 90, 53 Cal.Rptr. 706; Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865, 100 Cal.Rptr. 656.) Since plaintiffs alleged the forged permit caused the denial of the zoning variance, ipso facto, the forgery alleged meets this relationship test.

Appellants assert that the criminal act of forging the permit destroys the privilege. The California precedents, however, point toward a contrary conclusion. An early case held that a perjured statement in a complaint does not destroy the privilege, the remedy being a criminal action for perjury. (Ball v. Rawles (1892) 93 Cal. 222, 28 P. 839.) Preparing and presenting false documents is equivalent to the preparation and presentation of false testimony. Since there is no exception to the privilege when the testimony is perjured, by a parity of reasoning no exception should apply to the preparation and presentation of false documentary evidence. (Agostini v. Strycula (1965) 231 Cal.App.2d 804, 808, 42 Cal.Rptr. 314; Kachig v. Boothe, Supra, 22 Cal.App.3d 626, at p. 641, 99 Cal.Rptr. 393)

Appellants point to the language of Albertson v. Raboff, Supra, 46 Cal.2d 375 at page 380, 295 P.2d 405, to the effect that the privilege applies to any publication that is 'permitted' by law, as inferentially denying the privilege to false documents. However, in the light of cases decided before and after Albertson, it is apparent that the court in that case intended the language used to apply merely to the category of evidence or documents. The court did not intend to require that the evidence or documents be accurate or truthful before the privilege attached. To hold otherwise would be inconsistent with the general public purpose of the privilege to encourage the utmost freedom of access to the courts and quasi-judicial bodies. (Kachig v. Boothe, Supra, 22 Cal.App.3d 626 at p. 641, 99 Cal.Rptr. 393.)

Appellants also argue that the conspiracy to forge and actual forgery of the building permit took place prior to and outside of any meeting of the City Planning Commission or City Council and therefore did not occur 'in any proceeding.' This contention requires us to determine if the protective mantle of Civil Code section 47, subdivision 2, extends to the activities and conduct alleged, separated as they were in time and space from the city forums.

In Albertson v. Raboff, Supra, 46 Cal.2d 375, 295 P.2d 405, the court held the recordation of a Lis pendens is entitled to the privilege against the contention that such recordation was merely a private act outside the course of judicial proceedings. In the course of that holding the court said, at pages 380--361, 295 P.2d at page 409:

'It is our opinion that the privilege applies to any publication, such as the recordation of a notice of Lis pendens, that is required, e.g., Code Civ. Proc., § 749, or permitted, e.g., Code Civ. Proc., § 409, by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its...