Susan A. v. County of Sonoma

• Decision Date: 30 December 1991
• Docket Number: No. A052537,A052537
• Citation: 3 Cal.Rptr.2d 27,2 Cal.App.4th 88
• Court: California Court of Appeals Court of Appeals
• Parties: , 19 Media L. Rep. 1889 SUSAN A., et al., Plaintiffs and Appellants, v. COUNTY OF SONOMA, et al., Defendants and Respondents.

Page 27

3 Cal.Rptr.2d 27

2 Cal.App.4th 88, 19 Media L. Rep. 1889

SUSAN A., et al., Plaintiffs and Appellants, v. COUNTY OF SONOMA, et al., Defendants and Respondents.

No. A052537.

Court of Appeal, First District, Division 3, California.

Dec. 30, 1991.

Rehearing Denied Jan. 21, 1992.

Review Denied April 2, 1992.

[2 Cal.App.4th 91] Nathan Cohn, San Francisco, for plaintiffs and appellants.

Michael D. Senneff, Senneff, Bernheim, Kelly & Kimelman, Santa Rosa, Gail Z. Grant, David B. Paynter, Lewis, D'Amato, Brisbois & Bisgaard, San Francisco, for defendants and respondents.

CHIN, Associate Justice.

Susan, Douglas, and Marcus A. appeal from the trial court's grant of summary judgment in favor of respondents John Watts Podboy and the County of Sonoma (County) on appellants' complaint for breach of confidence, invasion of privacy, public disclosure of private facts, false light, defamation, intentional infliction of emotional distress, and negligence. They contend that the trial court erred in finding that Civil Code section 47, subdivision (b), ¹ renders absolutely privileged Podboy's statements to the press regarding Marcus's arrest on criminal charges. We find, based on the record before us, that summary judgment was improper because neither section 47(b) nor any of the other privileges on which respondents rely applies to Podboy's statements to the press. Therefore, we reverse. ²

FACTUAL AND PROCEDURAL BACKGROUND

On December 7, 1987, the Santa Rosa police arrested Marcus (age 14) on suspicion of attempted murder and took him into custody at juvenile hall. Marteen Miller, the public defender, asked Podboy, a forensic A reporter telephoned Podboy and stated that he was calling at Miller's direction and that Miller wanted Podboy to disclose his impressions of Marcus. Podboy believed that Miller had in fact authorized the reporter's inquiry. However, given the complicated nature of the case, Podboy did not respond and instead attempted to reach Miller to discuss the matter further, including the appropriate limits of the press disclosure. Because Miller was unavailable, Podboy spoke with the chief deputy public defender, Bruce Kinnison, who indicated that Podboy could speak with the press, but that he should use his judgment. According to Podboy, he asked Marcus if disclosure to the press was permissible, and Marcus said yes, "[i]n so many words...." Podboy subsequently spoke with the reporter about Marcus, and the local press published an article reporting the conversation. Podboy allegedly repeated his statements during a television interview. Marcus eventually pleaded guilty to assault with a deadly weapon.

psychologist, to evaluate Marcus for defense purposes. Pursuant to this request, Podboy met with and interviewed Marcus.

Susan A., Marcus's mother and guardian ad litem, filed suit on Marcus's behalf against Podboy and the County based on Podboy's statements to the press. She and her husband, Douglas, also sued on their own behalf. Podboy and the County moved for summary judgment on the ground that Podboy's statements were privileged. After hearing, the trial court found that the absolute privilege of section 47(b) applied and granted the motion. ³ After entry of judgment, the A.'s filed this appeal.

DISCUSSION

The principal issue on appeal is the trial court's application of section 47(b)'s privilege for publications "made: ... [p] (b) In any ... judicial proceeding...." (§ 47(b).) This 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 [sic ] some connection or logical relation to the action. [Citations.]" (Silberg v. Anderson (1990) 50 Cal.3d 205, 212, 266 Cal.Rptr. 638, 786 P.2d 365.) With one statutory exception that is not relevant here, the privilege is absolute if the publication satisfies all of these requirements; even actual malice does not overcome it. (Id., at pp. 215-216, 266 Cal.Rptr. 638, 786 P.2d 365.) If there is no dispute as to the operative facts, the availability of the privilege is a matter of law which the court may determine on summary judgment. (Gootee v. Lightner (1990) 224 Cal.App.3d 587, 591, 274 Cal.Rptr. 697.)

On the record before us, we find section 47(b) inapplicable because Podboy's statements to the press do not satisfy the requirement that the communication be "made in judicial or quasi-judicial proceedings...." (Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365.) ⁴ Podboy correctly points out that the privilege is available "even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.]" (Ibid.) However, republications to nonparticipants in the action are generally not privileged under section 47(b). (Silberg, supra, at p. 219, 266 Cal.Rptr. 638, 786 P.2d 365.) Thus, the privilege does not apply where publication is to persons in no way connected with the proceeding. (Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778, 234 Cal.Rptr. 653; Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 827, 106 Cal.Rptr. 718, disapproved on another ground in Silberg, supra, at pp. 216-219.) We find that, on the facts of this case, the press is not connected with the proceeding so as to render section 47(b) applicable. ⁵

Our Supreme Court reached a similar conclusion in Washer v. Bank of America (1943) 21 Cal.2d 822, 136 P.2d 297, disapproved on another ground in MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 551, 343 P.2d 36. There, an officer of a defendant made a statement about plaintiff to newspaper reporters and others after a National Labor Relations Board proceeding that resulted in an order for plaintiff's reinstatement. (Washer, supra, 21 Cal.2d at pp. 824-825, 136 P.2d 297.) The court rejected defendants' claim of privilege under former section 47, subdivision 2, stating: "The extension of this absolute privilege to statements not made in the judicial or legislative proceeding itself is ... limited ... to communications such as those made by a client to his attorney or by an individual to a prosecuting attorney or other public officer preliminary to a proposed criminal proceeding. [Citation.]" (Washer, supra, at p. 832, 136 P.2d 297.)

We reject Podboy's attempt to distinguish Washer on the ground that it involved statements "made by a party, presumably without the participation or direction of counsel, after the proceeding had concluded and a decision had been rendered." As is evident from the reasoning of the court we have quoted above, the court's holding was not so limited; the court focused on the connection to the action of those involved in the communication. (See Emde v. San Joaquin County etc. Council (1943) 23 Cal.2d 146, 154, 143 P.2d 20 [citing Washer for the proposition that a party to a labor dispute has no absolute privilege to publicize facts surrounding the dispute].) While subsequent cases have expanded the scope of section 47(b) to include publication to nonparties with a substantial interest in the proceeding (see Costa v. Superior Court (1984) 157 Cal.App.3d 673, 678, 204 Cal.Rptr. 1), the expansion does not encompass publication to the general public through the press. Such an expansion would swallow up the general rule, which our Supreme Court recently reaffirmed, that section 47(b) does not privilege "republications to nonparticipants in the action...." (Silberg v. Anderson, supra, 50 Cal.3d at p. 219, 266 Cal.Rptr. 638, 786 P.2d 365.)

In Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d 818, 106 Cal.Rptr. 718, Division Two of this District also refused to apply former section 47, subdivision 2, where plaintiffs alleged, among other things, that defendants had made false and malicious representations to newspaper and television reporters regarding court documents. The court reasoned that former section 47, subdivision 2, did not afford a full scale, blanket authorization to republish otherwise privileged material on a nonprivileged occasion to persons to whom the privilege does not apply, and found the section inapplicable because defendants had made the statements outside of the court, not during any legal proceeding, to reporters who were strangers and had no interest in the action. (Bradley, supra, at pp. 826-827, 106 Cal.Rptr. 718.) Adopting the reasoning of Kennedy v. Cannon (App.1962) 229 Md. 92, 182 A.2d 54, the court stated that "an attorney who wishes to litigate his case in the press will do so at his own risk [citation]." (Bradley, supra, 30 Cal.App.3d at p. 828, 106 Cal.Rptr. 718.) We reach the same conclusion here with respect to application of section 47(b). ⁶

Bradley's reliance on Kennedy is significant because in Kennedy, the Maryland Court of Appeals rejected a claim of absolute privilege on facts very similar to those before us. Defendant in Kennedy was the attorney for a man accused of rape. (Kennedy v. Cannon, supra, 182 A.2d at p. 55.) After interviewing his client, defendant told a newspaper editor that his client denied the charge based on the woman's consent. (Id., at pp. 55-56.) The paper published defendant's statement, and the woman sued for defamation. In reversing a directed verdict for defendant, the court held that there was no absolute privilege because publication to the press was not in a judicial proceeding. (Id., at pp. 57-58.) In reaching this result, the court rejected defendant's argument that the privilege applied because he had made the statement incident to his duty as counsel and to protect his client's physical safety. (Id., at pp. 55-56, 59.) We similarly reject Podboy's claim that section 47(b) applies because he spoke to the press to obtain a litigation advantage for Marcus. In the words of the Maryland court, a contrary holding "would open the door to the universally condemned ...