Saroyan v. Burkett

• Decision Date: 17 May 1962
• Citation: 371 P.2d 293,21 Cal.Rptr. 557,57 Cal.2d 706
• Court: California Supreme Court
• Parties: , 371 P.2d 293 S. M. SAROYAN, Plaintiff and Appellant, v. William A. BURKETT, Defendant and Respondent. S. F. 20918.

Page 557

21 Cal.Rptr. 557

57 Cal.2d 706, 371 P.2d 293

S. M. SAROYAN, Plaintiff and Appellant, v. William A. BURKETT, Defendant and Respondent.

S. F. 20918.

Supreme Court of California, In Bank.

May 17, 1962.

Rehearing Denied June 13, 1962.

Marvin E. Lewis, Shirley, Saroyan, Cartwright & Peterson, and Robert E. Cartwright, San Francisco, for plaintiff and appellant.

Stanley Mosk, Atty. Gen., Harold B. Haas, Asst. Atty. Gen., and Victor Griffith, Deputy Atty. Gen., for defendant and respondent.

PER CURIAM.

Plaintiff appeals from a judgment entered against him on the pleadings in an action to recover damages for allegedly defamatory statements made by defendant while he was Superintendent of Banks.

The allegations of the complaint may be summarized as follows: From January 1942 through December 1955 plaintiff was the attorney for the Superintendent of Banks in connection with all matters pertaining to the liquidation and conservatorship of Japanese banks in California. On December 12, 1958, defendant (who was Superintendent of Banks from August 1955 through January 1959) issued a press release to the effect that he had filed suit to determine the ownership of certain Japanese government bonds which had been held by the State Banking Department during liquidation of Japanese banks taken over during World War II and that, ignoring statements that the bonds were probably worthless, he had investigated the matter and found that some of them were of substantial value. Thereafter, plaintiff stated to the press that the bonds were 'completely worthless' and that even if they had value they would not belong to California but to the federal government.

In response, as reported in two San Francisco newspapers on December 16, 1958, defendant stated, among other things, that he had 'fired' plaintiff, that plaintiff had been 'completely repudiated in the past' and was 'getting into this to justify has not doing anything about the bonds when he was in charge of them,' that an investigation should be made to find out why they bonds were 'left gathering dust in a safe deposit box,' and that defendant wanted the 'Justice Department' to look into the matter and 'in particular, to (plaintiff's) conduct in office.'

It is alleged that these statements were false and were maliciously made by defendant with knowledge of their falsity for the purpose of injuring plaintiff's reputation and professional standing.

The facts alleged by plaintiff must be taken as true, and the allegedly false and malicious statements are reasonably subject to being understood as charging or insinuating that plaintiff had been guilty of incompetence. In these circumstances the judgment against plaintiff on the pleadings is improper unless defendant enjoyed an absolute privilege protecting him from liability for maliciously making false and defamatory statements to the public. An 'absolute' privilege excludes liability for a publication notwithstanding that it is made with actual malice, whereas a 'qualified' or 'conditional' privilege does not protect a defendant who has acted maliciously.

Section 47 of the Civil Code sets forth the situations in which a communication is privileged and provides in subdivision 1 that a privileged publication is one made in the 'proper discharge of an official duty.' ¹ Subdivision 1 does not show whether officials in discharging their duties have an absolute privilege or, if so, to what extent. The use of the word 'proper' to limit 'discharge of an official duty' is at least as consistent with a qualified privilege as with an absolute one, and, when the statute was enacted, an absolute privilege for executive officials with respect to defamation had not yet been recognized by the courts.

Section 47 was enacted in 1872, and subdivision 1 has remained the same since that time. ² The annotation to section 47 made by the code commission in 1872 is significant. In a preface to the annotated edition of the Civil Code, it was said that the purpose of the notes to the various sections was to explain the 'reason' and 'intent' of the law and that, wherever there was an intent to modify existing law, the reasons for the change would be given. With respect to section 47, the annotation consists solely of the citation of a textbook and three New York cases, and according to these authorities an absolute privilege was confined to statements made in the course of judicial or legislative proceedings. The cases that contain language to the effect that the privilege conferred by subdivision 1 is an absolute one, e. g., Hale Company v. Lea, 191 Cal. 202, 205, 215 P. 900; Snively v. Record Publishing Co., 185 Cal. 565, 577, 198 P. 1; Irwin v. Newby, 102 Cal.App. 110, 115, 282 P. 810, 283 P. 370, did not consider the background of the subdivision or the meaning to be given to the word 'proper' therein, and the only case involving an executive official, Hale Company v. Lea, supra, held that the official was not privileged because he was acting outside the scope of his authority.

It thus appears that the problem of the extent, if any, to which executive officials have an absolute privilege cannot be satisfactorily resolved on the basis of the statutory language, the historical background of the subdivision or the California cases cited above, and a solution must be found by considering the treatment of the subject in the law generally. This approach is particularly appropriate in regard to the statute before us because it was evidently intended as a condification of the general principles developed by the courts.

An absolute privilege for executive officials with respect...