Spitler v. Children's Institute International

• Decision Date: 01 December 1992
• Docket Number: No. B065906,B065906
• Citation: 14 Cal.Rptr.2d 197,11 Cal.App.4th 432
• Court: California Court of Appeals Court of Appeals
• Parties: Babette J. SPITLER, Plaintiff and Appellant, v. CHILDREN'S INSTITUTE INTERNATIONAL and Kathleen "Kee" MacFarlane, Defendants and Respondents.

Page 197

14 Cal.Rptr.2d 197

11 Cal.App.4th 432

Babette J. SPITLER, Plaintiff and Appellant, v. CHILDREN'S INSTITUTE INTERNATIONAL and Kathleen "Kee" MacFarlane, Defendants and Respondents.

No. B065906.

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

Dec. 1, 1992.

Eliseo D.W. Gauna, Van Nuys, Law Offices of William H. Waysman, Deborah Cummis, Los Angeles, for plaintiff and appellant.

Charles P. Diamond, Gregory N. Albright, O'Melveny & Myers, Los Angeles, for defendants and respondents.

J.D. LORD, Associate Justice, Assigned. ^*

Introduction

In this appeal we again review the claims of plaintiff Babette J. Spitler, one of the original defendants in the McMartin Preschool child molestation prosecution against Children's Institute International ("CII") and Kathleen "Kee" MacFarlane ("MacFarlane"), the child care professionals who interviewed the McMartin preschool children at the behest of the Los Angeles District Attorney's Office. The trial court granted CII and MacFarlane's motion for summary judgment, ruling that each of four statements identified as defamatory by plaintiff in the discovery process was either privileged, protected opinion, not "of or concerning" plaintiff, and/or barred by the statute of limitations. The court also denied plaintiff's request for additional discovery pursuant to Code of Civil Procedure section 437c, subdivision (h). This appeal follows.

Facts

Plaintiff, a teacher at the McMartin Preschool in Manhattan Beach, was indicted by the Los Angeles County Grand Jury on March 22, 1984 for allegedly participating in the molestation of numerous children attending the preschool. After an 18-month preliminary hearing, plaintiff and six co-defendants were bound over for trial. Ira Reiner, the then-newly elected District Attorney, dismissed charges against plaintiff and four of her co-defendants on January 17, 1986.

On June 12, 1986, plaintiff, together with her husband and two minor children, commenced this action against CII, MacFarlane, the County of Los Angeles, the City of Manhattan Beach, Astrid Heger, Bruce Woodling, Robert Philibosian, Wayne Satz and ABC Television, Inc. The complaint asserted causes of action against CII and MacFarlane for conspiracy to violate civil rights, RICO, defamation, invasion of privacy, intentional and negligent infliction of emotional distress, outrageous conduct and declaratory relief. Through a succession of demurrers, reviewed by this court in an opinion issued February 28, 1990, plaintiff's husband and children were dismissed and her action was reduced to a single claim for defamation.

After her second amended complaint was found deficient for failing to plead the defamatory statements (or the circumstances allegedly making them non-privileged) with the specificity required by this court's decision, plaintiff alleged in her third amended complaint "a social and romantic relationship" between MacFarlane and ABC broadcast journalist Wayne Satz, from which emerged the "same defamatory statements" allegedly made during three different time periods: (1) prior to the initiation of criminal charges against plaintiff; (2) during the course of the criminal proceedings; and (3) after criminal charges against plaintiff had been dismissed. Upon CII and MacFarlane's motion, the trial court struck the allegations concerning defamatory statements made during the course of criminal proceedings.

In response to interrogatories and document requests asking plaintiff to identify all statements made by CII or MacFarlane which purportedly defamed her, plaintiff proffered the following four statements: (1) Testimony MacFarlane gave before a United States congressional subcommittee investigating the nationwide incidence of child abuse; ¹ (2) Statements made during interviews of the McMartin preschoolers; (3) A statement attributed to Dr. Astrid Heger, a medical consultant to CII, and published in Los Angeles magazine; ² and (4) Comments MacFarlane made to the press following dismissal of charges against plaintiff and four of her co-defendants. ³ Contending that none of these statements was actionable, CII and MacFarlane moved the trial court for summary judgment or, in the alternative, for summary adjudication as to each statement. The court granted the motion, finding that each statement was either privileged, barred by the statute of limitations, protected opinion and/or not "of and concerning" plaintiff. The court also denied plaintiff's request for a continuance to conduct further discovery, and denied plaintiff's request for leave to amend to add allegations regarding her alleged belated discovery of defamatory statements as a basis for tolling the statute of limitations.

Contentions

The following questions are thus presented for review: (1) Did the trial court abuse its discretion in striking the allegations concerning defamatory statements made by MacFarlane to Satz during the course of criminal proceedings? (2) Did the court properly determine that none of the four allegedly defamatory statements was actionable because either privileged, barred by the statute of limitations, protected opinion or not "of and concerning" plaintiff? (3) Did the court abuse its discretion in denying plaintiff's request for leave to amend to add allegations regarding her belated discovery of defamatory statements for purposes of tolling the statute of limitations?

Discussion

I

MacFarlane testified extensively at the preliminary hearing, implicating plaintiff in molestation of McMartin preschoolers. Plaintiff believes that this testimony was false, perjurious and defamatory. She acknowledges, however, that because these statements were given as testimony in a judicial proceeding, they are absolutely privileged under Civil Code section 47, subdivision (b)(2). ⁴ In her third amended complaint, plaintiff added allegations that MacFarlane "previewed" her preliminary hearing testimony to Satz, who then "coached" her in delivering that testimony at the preliminary hearing. Because this communication between MacFarlane and Satz was not made "in any judicial proceeding," plaintiff contends that it was not privileged, and the trial court therefore abused its discretion in striking the allegation.

The Supreme Court recently enunciated the "test" for application of section 47(b) as follows: "The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365.) It appears from plaintiff's briefs that she challenges the first prong of this test (that MacFarlane's statements to Satz were made in a judicial proceeding) since she emphasizes that they were made "before [MacFarlane's] testimony." However, there can be no doubt that the communications were made in a judicial proceeding, for "the privilege is not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards, provided they have some relation to it." (5 Witkin, Summary of Cal. Law (9th ed. 1988), Torts, § 505, p. 591; see also, Silberg v. Anderson, supra, at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365 [the privilege applies "even though the publication is made outside the courtroom and no function of the court or its officers is involved"].) Were this not the rule, it would undermine the vital purpose effectuated by the litigation privilege, "to afford litigants and witnesses [citation omitted] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." (Id. at p. 213, 266 Cal.Rptr. 638, 786 P.2d 365.)

Plaintiff does not specifically assert that the purported statements fail to meet the remaining prongs of the test. In any case, they in fact do meet the requirements set forth in Silberg. As a principal witness in the preliminary hearing, MacFarlane was clearly "a participant authorized by law." And since the substance of the allegation was that MacFarlane rehearsed her testimony with Satz, plaintiff can make no claim that there was no connection or logical relation between the defamatory statements and the judicial proceeding. Finally, as the Silberg court noted, "[t]he 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." (50 Cal.3d at pp. 219-220, 266 Cal.Rptr. 638, 786 P.2d 365.) Therefore, the alleged statements meet the Silberg test, and are thereby privileged.

Since the absolute privilege of section 47(b) applied to the alleged defamatory statements of MacFarlane made to Satz during the course of the preliminary hearing, the trial court did not abuse its discretion in striking those allegations from the complaint.

II

We next turn to the court's order granting summary judgment in favor of CII and MacFarlane. Summary judgment is appropriate where the record establishes as a matter of law that no material disputed issue of fact exists or that the cause of action cannot prevail. (Wilkerson v. Wells Fargo Bank (1989) 212 Cal.App.3d 1217, 1224, 261 Cal.Rptr. 185.) Because the motion raises only questions of law regarding the construction and effect of the supporting and opposing papers, this court will make its own independent determination of the questions of law raised in the motion. (Slivinsky v. Watkins-Johnson Co. (1990) 221 Cal.App.3d 799, 803-804, 270 Cal.Rptr. 585; Wilkerson v. Wells Fargo Bank, supra, at p. 1225, 261 Cal.Rptr. 185.) Applying the foregoing...