Rosenthal v. Vogt

• Decision Date: 11 March 1991
• Docket Number: No. B,B
• Citation: 229 Cal.App.3d 69,280 Cal.Rptr. 1
• Court: California Court of Appeals Court of Appeals
• Parties: Jerome B. ROSENTHAL, Plaintiff and Appellant, v. Constance VOGT et al., Defendants and Respondents. 033509.

Page 1

280 Cal.Rptr. 1

229 Cal.App.3d 69

Jerome B. ROSENTHAL, Plaintiff and Appellant, v. Constance VOGT et al., Defendants and Respondents.

No. B 033509.

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

March 11, 1991.

As Modified April 9, 1991.

[229 Cal.App.3d 71] Jerome B. Rosenthal, in pro. per.

Diane C. Yu, Oakland, Marie M. Moffat, San Francisco, Robert M. Sweet, Irell & Manella, Dorette S. Feit, Robyn Martin, Mitchell, Silberberg & Knupp, Thomas P. Lambert and John L. Segal, Los Angeles, for defendants and respondents.

FUKUTO, Associate Justice.

Plaintiff, Jerome B. Rosenthal, appeals from three orders of dismissal, entered after the sustaining without leave to amend of demurrers to his first amended complaint, which sought relief on account of allegedly wrongful conduct by defendants in connection with his disbarment proceedings. (See Rosenthal v. State Bar (1987) 43 Cal.3d 612, 238 Cal.Rptr. 377, 738 P.2d 723.) We affirm.

FACTS

The defendants-respondents comprise two, separately appearing groups: first, the State Bar of California (Bar) and a number of attorneys who were either Bar employees or members of its governing and disciplinary boards at the time of plaintiff's disbarment hearings (Bar defendants); second, several other California lawyers, who succeeded plaintiff as counsel for clients whose abuse underlay his disbarment (attorney defendants).

Plaintiff's 45-page complaint contained 12 purported causes of action for damages, 3 based on federal civil rights laws (42 U.S.C. §§ 1983, 1988), 8 for California torts (4 negligent infliction of emotional distress, 3 intentional infliction, and 1 breach of fiduciary duty), and a final cause relying on the federal Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961 et seq.) (RICO). ¹ We reserve discussion of the RICO claim to the end of this opinion. The rest of the damage claims in essence alleged (1) that the attorney defendants interfered with plaintiff's disciplinary proceedings by secretly communicating to the Bar defamatory and irrelevant material, and (2) that the Bar defendants conducted the proceedings unfairly, vindictively, and out of personal motivation of hatred, including suppressing evidence, restricting plaintiff's defense, admitting inadmissible evidence, and other behavior calculated and effective to deny plaintiff a fair hearing. As stated, this conduct allegedly was both tortious and, in the case of some of the Bar defendants, violative of plaintiff's 14th Amendment rights.

The trial court sustained separate demurrers of the attorney defendants and two sets of Bar defendants, on various grounds. The claims against the attorney defendants were held barred by Civil Code section 47, former subdivision 2 (now subdivision (b)) and by collateral estoppel from previous lawsuits by and against plaintiff. The Bar defendants were held immunized from the civil rights claims by federal quasi-judicial immunity, and from the state tort claims by Government Code immunity provisions. Those causes were also held barred by plaintiff's failure to present a governmental tort claim, and the court further held that review of Bar disciplinary proceedings was beyond its subject matter jurisdiction.

Plaintiff disputes all of these holdings. We address only so many of them as self-sufficiently sustain the trial court's action. ²

DISCUSSION

1. Attorney Defendants (Seventh and Eighth Causes of Action).

Other than the RICO claim, the only causes of action asserted against the attorney defendants were the seventh and eighth, respectively for intentional and negligent infliction of emotional distress. These causes, the first of which was also filed against the Bar, alleged that between 1968 and 1986, a period spanning the Bar's investigation of and proceedings concerning plaintiff, the attorney defendants secretly defamed plaintiff to the Bar, and brought to it information it should not have considered in the disciplinary proceedings. This conduct was done with intent to inflict emotional distress and in breach of the attorney defendants' duty to refrain from unreasonable and unjustifiable interference with the proceedings. The Bar ratified it.

The trial court properly dismissed these causes as barred by the absolute privilege for communications made in judicial or other official proceedings (Civ.Code, § 47, subd. (b)), which the Bar now also properly asserts against the seventh cause. That privilege extends to attorneys' complaints to and communications with the Bar, initiating and pursuing disciplinary proceedings, as well as the Bar's response to such communications. (Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 667-669, 211 Cal.Rptr. 847; Chen v. Fleming (1983) 147 Cal.App.3d 36, 39-41, 194 Cal.Rptr. 913.) Moreover, the privilege bars claims not only for defamation (which is actually the gravamen of plaintiff's instant claims) but also for infliction of emotional distress (and, for that matter, all other torts save malicious prosecution). (E.g., Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216, 266 Cal.Rptr. 638, 786 P.2d 365.)

Plaintiff contends that the challenged communications were not "made to achieve the objects" of the proceedings (see id. at p. 212), because the object of the disciplinary proceeding was an objective, fair, and impartial resolution, whereas defendants allegedly acted unfairly and in calculated disregard of plaintiff's rights. This contention is a rehash of the "interest of justice" argument the Supreme Court unanimously rejected in Silberg v. Anderson, supra, 50 Cal.3d at pp. 216-219, 266 Cal.Rptr. 638, 786 P.2d 365. In refusing so to circumscribe the privilege, the court added: "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 extraneous to the action.... The 'furtherance' requirement was never intended as a test of a participant's motives, morals, ethics or intent." (Id. at pp. 219-220, 266 Cal.Rptr. 638, 786 P.2d 365.) Here as in Silberg, "The privilege of section 47( [b] ) plainly applies." (Id. at p. 220, 266 Cal.Rptr. 638, 786 P.2d 365.) ³

2. Bar Defendants--Tort Claims (4th-6th and 10th-12th Causes of Action).

Plaintiff asserted two further sets of state law tort claims against various of the Bar defendants. First, he alleged these defendants violated their fiduciary duty to conduct the proceedings fairly (fourth cause), and that in so behaving they intentionally inflicted emotional distress (fifth cause) and negligently performed their duties (sixth cause). In the 10th through 12th causes, plaintiff alleged that a Bar staff attorney, with the Bar's complicity, prepared and circulated memoranda within the Bar, to advance a plan to deprive plaintiff of his license without due process, thereby committing negligence and negligent and intentional infliction of emotional distress.

Preliminarily, we agree with the Bar that the latter three causes of action are barred by the Civil Code section 47, subdivision (b) privilege, for the same reasons as are the preceding causes of action discussed above. Furthermore, as the trial court held, all six tort claims are unalterably precluded by provisions of the Tort Claims Act, specifically Government Code sections 818.4 and 821.2, which immunize public entities and their employees from tort liability arising out of revocation of a license, and section 821.6, which immunizes public employees on account of injuries caused by their "instituting or prosecuting any judicial or administrative proceeding within the scope of [their] employment, even if [they] ac[t] maliciously and without probable cause." (Emphasis added.)

Apart from the plain language of these statutes, analogous cases confirm their preclusive effect on plaintiff's present claims. In State of California v. Superior Court (1974) 12 Cal.3d 237, 244-245, 115 Cal.Rptr. 497, 524 P.2d 1281, the court considered a claim for damages against a commission and its members and employees, on account of their alleged failure to follow their own procedures, receipt of secret information from staff, and denial of a fair hearing, before rejecting a permit application. The court held that a demurrer to this cause should have been sustained without leave under sections 818.4 and 821.2. Perhaps even more in point, Engel v. McCloskey (1979) 92 Cal.App.3d 870, 155 Cal.Rptr. 284 involved an attorney's action against the Bar, its committee, and two individual employees, alleging (inter alia) that defendants negligently conducted their investigation of plaintiff's suitability for Bar admission, and intentionally inflicted emotional distress by maliciously prolonging the investigation and convening a hearing. The court affirmed the sustaining without leave to amend of demurrers to these claims, by reason of sections 818.4, 821.2 and 821.6. (92 Cal.App.3d at pp. 881-883, 886-887, 155 Cal.Rptr. 284.)

Plaintiff resists application of these immunities by contending that defendants were under a mandatory not discretionary duty (see Gov.Code, § 815.6) to act lawfully in discharging their functions, and that the individual defendants' violations of law and procedure could not have occurred within the scope of their employment. These semantic arguments are unavailing. The Bar proceedings in the course of which defendants' alleged delicts occurred were inherently discretionary, and the immunity of sections 818.4 and 821.2 therefore applies to the proceedings as a whole. (Engel v. McCloskey, supra, 92 Cal.App.3d at p. 883, 155 Cal.Rptr. 284.) Similarly, section 821.6 extends to the pursuit of proceedings within the scope of the employee's assigned employment; the immunity is not limited to activities lawfully performed. (Randle v. City and County of San Francisco (1986) 186 Cal.App.3d 449, 456-457, 230 Cal.Rptr. 901.)

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