Portman v. George McDonald Law Corp.

• Decision Date: 17 December 1979
• Court: California Court of Appeals Court of Appeals
• Parties: John PORTMAN and Mary Portman, Plaintiffs and Appellants, v. GEORGE McDONALD LAW CORP., George McDonald et al., Defendants and Respondents. Civ. 56402.

Page 505

160 Cal.Rptr. 505

99 Cal.App.3d 988

John PORTMAN and Mary Portman, Plaintiffs and Appellants, v. GEORGE McDONALD LAW CORP., George McDonald et al., Defendants and Respondents.

Civ. 56402.

Court of Appeal, Second District, Division 2, California.

Dec. 17, 1979.

Coulter, Vernoff & Brewer by Wallace R. Vernoff, Pasadena, for plaintiffs and appellants.

Breidenbach, Swainston, Yokaitis & Crispo, by W. F. Rylaarsdam, Pasadena, for defendants and respondents.

ROTH, Presiding Justice.

In an earlier but related action to that which is the subject of this appeal, respondents were attorneys of record for an insurance corporation which suffered a money judgment against it in appellants' favor for some $12,000. When the corporation appealed in that matter, respondents sought to avoid the filing of an undertaking to stay enforcement on behalf of their clients (Code Civ.Proc., § 917.1) and in that connection advised appellants' counsel both orally and by letter that the corporation was "financially as sound as a dollar." After that advice, which was accepted by its recipients, proved inaccurate and it was discovered the company was in fact insolvent at the time the assurance was rendered and was later placed in receivership, appellants brought the present suit based on negligent misrepresentation. Respondents' motion for judgment on the pleadings therein was granted December 13, 1978, concededly on the basis of the privilege accorded by Civil Code section 47(2). ¹ This appeal followed. Though expressed in somewhat differing manners by the parties, the only issue before us is whether as a matter of law the trial court's determination was correct. We hold that it was.

The policy considerations which provide support for the privilege referred to (see fn. 1) and which were first expressed in Albertson v. Raboff (1956) 46 Cal.2d 375, 382, 295 P.2d 405, and later summarized in Kachig v. Boothe (1971) 22 Cal.App.3d 626, 99 Cal.Rptr. 393, namely that:

"Underlying the recognition of this privilege is the important public policy of affording the utmost freedom of access to the courts. (See Albertson v. Raboff, supra, 46 Cal.2d at p. 380, 295 P.2d 405; Prosser, Law of Torts (3d ed.) p. 797.) The privilege is accorded not only to parties but to witnesses, even where their testimony is allegedly perjured and malicious. (See Agostini v. Strycula, supra, 231 Cal.App.2d (804) at p. 808, 42 Cal.Rptr. 314; Prosser, Law of Torts, Supra.) '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.' (Prosser, Law of Torts (3d ed.) Supra, p. 797.)" (Id., at p. 641, 99 Cal.Rptr. at p. 403.)

have often found exposition in other reported decisions (see e. g., Brody v. Montalbano (1978) 87 Cal.App.3d 725, 151 Cal.Rptr. 206; Twyford v. Twyford (1976) 63 Cal.App.3d 916, 134 Cal.Rptr. 145; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 131 Cal.Rptr. 592; Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 116 Cal.Rptr. 781; Younger v. Solomon (1974) 38 Cal.App.3d 289, 113 Cal.Rptr. 113; Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 106 Cal.Rptr. 718; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 104 Cal.Rptr. 650; Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 100 Cal.Rptr. 656; Rader v. Thrasher (1972) 22 Cal.App.3d 883, 99 Cal.Rptr. 670; Thornton v. Rhoden (1966) 245 Cal.App.2d 80, 53 Cal.Rptr. 706), and while in our view not every such decision is understandable as strictly adhering to those considerations (see Umansky v. Urquhart (1978) 84 Cal.App.3d 368, 148 Cal.Rptr. 547; Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893, 136 Cal.Rptr. 321), there yet emerges as a sufficiently clear distillation of principles associated with any inquiry into the scope of the privilege the conclusion that:

"(the) absolute privilege in judicial proceedings is afforded only if the following conditions have been met: the publication (1) was made in a judicial proceeding; (2) had some connection or logical relation to the action; (3) was made to achieve the objects of the litigation; and (4) involved litigants or other participants authorized by law." (Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d 818, 825, 106 Cal.Rptr. 718, 722.)

Appellants in accepting this formulation of criteria at the same time urge the facts present fail to satisfy it. That is to say, it is suggested the alleged misrepresentation was not a "publication," was not made in a judicial proceeding, had no connection or logical relation to the action with which it was associated and was not made to achieve the objects of that litigation.

The first and second of these contentions we reject summarily; on the one hand because the privilege, having been over time extended beyond its initial application in defamation actions only, (see Pettitt v. Levy, supra, 28 Cal.App.3d 484, 489, 104 Cal.Rptr. 650), it cannot in any reasonable sense be maintained the publication spoken of in the statute is confined to the type meeting the requirements...