Sanborn v. Chronicle Pub. Co.

• Decision Date: 03 December 1976
• Docket Number: S.F. 23471
• Citation: 18 Cal.3d 406,556 P.2d 764,134 Cal.Rptr. 402
• Court: California Supreme Court
• Parties: , 556 P.2d 764 Lyman H. SANBORN, Plaintiff and Appellant, v. CHRONICLE PUBLISHING COMPANY, Defendant and Respondent, City and County of San Francisco et al., Defendants and Appellants.

Page 402

134 Cal.Rptr. 402

18 Cal.3d 406, 556 P.2d 764

Lyman H. SANBORN, Plaintiff and Appellant, v. CHRONICLE PUBLISHING COMPANY, Defendant and Respondent City and County of San Francisco et al., Defendants and Appellants.

S.F. 23471.

Supreme Court of California.

Dec. 3, 1976.

Milton L. McGhee, Sacramento, for plaintiff and appellant.

Thomas M. O'Connor, City Atty., and John Sullivan Kenny, Deputy City Atty., for defendants and appellants.

Cooper, White & Cooper, Robert R. Callan and Mark Logan Tuft, San Francisco, for defendant and respondent.

RICHARDSON, Justice.

In this case we are presented with questions involving the liability of defendants City and County of San Francisco (City) and its clerk, Martin Mongan (Mongan), for defamation arising from Mongan's statements to the news media explaining his release to plaintiff of funds which had been deposited with Mongan. Concluding as we do that at the time of his statements Mongan was acting within the scope of his employment and that neither immunity nor privilege enfolded City or Mongan, plaintiff's judgment against both defendants following jury verdict is affirmed.

We affirm the judgment entered in favor of defendant Chronicle Publishing Company, and adopt that portion of the vacated Court of Appeal opinion which considered this aspect of these appeals.

The record reflects that in 1968 plaintiff Sanborn visited Mongan at the latter's office and sought the release of approximately $25,400 in attached funds which had been deposited with Mongan in his capacity as county clerk. Although Mongan had been instructed by a deputy city attorney not to release the funds without a court order, Mongan decided that plaintiff's claim on the funds was valid and paid the money to him.

A few days later the chief deputy county clerk learned of the payment and advised Mongan that he had erred in releasing the funds without a court order. (Mongan testified at trial that he realized he had made a mistake, that no fraud or trickery was involved, but that he had simply been persuaded by plaintiff to release the funds to him.) Soon thereafter, a reporter from the San Francisco Chronicle learned of the incident, called Mongan on the telephone and interviewed him regarding the matter. In an article in the Chronicle which followed, Mongan was quoted as having said that 'It was a real con job,' that plaintiff 'outtalked me and convinced me that we were holding his money illegally,' that plaintiff 'ranted and raved and said I was putting his client to a lot of unnecessary expense and trouble.' The story was thereafter published in the Sacramento Bee which has a large circulation in the area where plaintiff resided. As a result of the publication, plaintiff lost his job, suffered embarrassment and ridicule, and resigned from several clubs and organizations.

Plaintiff filed a defamation action against City, Mongan, and the Chronicle Publishing Company. The suit against the Chronicle was dismissed for failure to prosecute; plaintiff appealed this dismissal. The action against City and Mongan proceeded to trial and the jury returned a verdict for plaintiff against both defendants in the amount of $31,650. Plaintiff appeals from the judgment of dismissal as to the Chronicle. In a separate appeal, City and Mongan seek reversal of the judgment entered in plaintiff's favor. We consider each appeal separately.

1. The Appeal of City and Mongan

Defendants concede, for purposes of this appeal, that Mongan defamed plaintiff. They assert, however, that Mongan possessed either an absolute or qualified privilege (see Civ.Code, § 47, subds. 1, 3), or alternatively that both Mongan and City are immune from liability under the circumstances of this case (see Gov.Code, §§ 815.2, subd. (b), 820.2).

We first dispose of a preliminary issue, namely the liability, if any, of City for the acts of Mongan, its employee.

a.) Respondeat superior. As a general proposition it may be said that, if an employee or agent while acting in the scope of his authority and in furtherance of the employee's business defames another, his employer or principal may be held liable therefor. (Correia v. Santos (1961) 191 Cal.App.2d 844, 855, 13 Cal.Rptr. 132.) This is so even though the agent may have exceeded his express authority (Draper v. Hellman Com. T. & S. Bank (1928) 203 Cal. 26, 38--39, 263 P. 240), and it is true regardless of the agent's motive (Rosenberg v. J. C. Penney Co. (1939) 30 Cal.App.2d 609, 623, 86 P.2d 696). It has been said that the rule is supported by 'The great weight of authority.' (See Annot. 150 A.L.R. 1338, 1344.)

The foregoing well-rooted principle is unaffected by the fact that the employment is public. Considerations bearing on the ambit and nature of that public employment were well expressed in Neal v. Gatlin (1973) 35 Cal.App.3d 871, 875, 111 Cal.Rptr. 117, 120, '. . . a public employee is acting in the course and scope of the employment 'when he is engaged in work he was employed to perform or when the act is an incident to his duty and was performed for the benefit of his employer and not to serve his own purposes or conveniences.' (Citations.) The phrase 'scope of employment' has been equated with the express or implied power of the public employee to act in a particular instance, and in evaluating his conduct to determine whether it is within the ambit of his authority we are to look not to the nature of the act itself, but to the purpose or result intended. (Citations, fn. omitted.) If the object or end to be accomplished is within the employee's express or implied authority his act is deemed to be within the scope of his employment irrespective of its wrongful nature.' (See also Burgdorf v. Funder (1966) 246 Cal.App.2d 443, 54 Cal.Rptr. 805.)

The record before us supports the jury's implied finding that Mongan was acting within the scope of his authority when he defamed the plaintiff. Mongan held the office of Clerk of the City and County of San Francisco and, as such, had at least implied authority to issue statements to the press and to submit to interviews regarding the operation of the clerk's office, including explanations as to why impounded funds were released without prior court order. The subject of the press interview involved public and official business. Any statements made by Mongan concerning transactions of the clerk's office, while conceivably exculpating Mongan personally to a degree, would also serve the further purpose of informing the press and the public as to whether the clerk's office was performing its public duties in a rational and orderly fashion. While City insists that the sole purpose of the statement in question was for the personal advantage and gain of Mongan, we cannot presume as a matter of law that the statements were of no conceivable benefit to the City, or that their object was Solely to save Mongan from personal embarrassment. The jury reasonably could have concluded that responses to press inquiry constituted, as to time, place, and circumstance, responses of a public official regarding his administration of a public office and thus was within the scope of his public employment. An important public purpose is served both by the press inquiry and by the official's response. We conclude, accordingly, that the statement was made within the ambit of Mongan's public employment, and that his principal, City, is liable therefor in the absence of other defenses.

b.) Absolute privilege. Mongan and City both contend that Mongan's statements were protected by an absolute statutory privilege conferred on all publications made '(i)n the proper discharge of an official duty.' (Civ.Code, § 47, subd. 1.) Plaintiff, however, correctly observes that the courts of this state have thus far extended the protections of this statute only to highranking state and federal officials, such as the President of the United States, the governor of any state or territory, cabinet officers of the United States and the corresponding officers of any state or territory. (See Saroyan v. Burkett (1962) 57 Cal.2d 706, 710, 21 Cal.Rptr. 557, 371 P.2d 293; Frisk v. Merrihew (1974) 42 Cal.App.3d 319, 323, 116 Cal.Rptr. 781; White v. State of California (1971) 17 Cal.App.3d 621, 627--628, 95 Cal.Rptr. 175; see also Rest., Torts, § 591; Rest.2d Torts (Ten. Draft No. 20), § 591, com. (c); Prosser, The Law of Torts (4th ed. 1971) § 114, pp. 782--784; 1 Harper & James, The Law of Torts (1956) § 5.23, pp. 429--430; but see Barr v. Matteo (1959) 360 U.S. 564, 572--576, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (absolute privilege for all Federal executive officers).)

It has been noted by recognized authorities that the purpose of the so-called absolute 'official duty' privilege is to insure efficiency in government by encouraging Policy-making officials to exercise their best judgment in the performance of their duties free from fear of general tort liability. (Harper & James, supra, at p. 429.) As we discuss below in greater detail we have concluded that defendant Mongan was not exercising policy-making functions when he defamed plaintiff, and thus he is not protected by the absolute privilege contained in Civil Code section 47, subdivision 1.

c.) Conditional or qualified privilege. Defendants next assert that they are entitled to the protection of that privilege, if not absolute at least conditional or qualified, which is contained in subdivision 3 of section 47 of the Civil Code. This statute immunizes communications made '. . . Without malice, to a person interested therein, (by one) . . . (3) who is requested by the person interested to give the information.' (Italics added.) By definition, this conditional privilege is defeated by a showing of 'malice.'

Section 48a, subdivision 4(d), of the Civil Code defines 'actual malice' as 'that state of mind arising from hatred or ill will toward the plaintiff; provided, however, that such a state of mind occasioned by a good...