White v. State of California

• Decision Date: 18 May 1971
• Citation: 17 Cal.App.3d 621,95 Cal.Rptr. 175
• Parties: Gene Arthur WHITE, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents. Civ. 12835.
• Court: California Court of Appeals Court of Appeals

Page 175

95 Cal.Rptr. 175

17 Cal.App.3d 621

Gene Arthur WHITE, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

Civ. 12835.

Court of Appeal, Third District, California.

May 18, 1971.

Hearing Denied Sept. 2, 1971.

Fields & Klein, Sacramento, for plaintiff-appellant.

Thomas C. Lynch, Atty. Gen., by Thomas K. McGuire, Deputy Atty. Gen., Sacramento, for defendants-respondents.

REGAN, Associate Justice.

Plaintiff brings this action for damages against the State of California and certain designated employees and agents thereof, acting through the Department of Justice, Bureau of Criminal Identification and Investigation (hereafter referred to as Bureau), alleging that the Bureau negligently posted to plaintiff's record, and negligently disseminated and published erroneous information relating to plaintiff. After plaintiff's opening statement the court granted defendants' motion for a nonsuit. Plaintiff appeals from the judgment.

There having been no objection raised to the statement of facts as set forth in defendants' brief, we adopt the same as the true statement of facts herein.

Plaintiff was arrested, made a ward of the juvenile court, and placed on probation for grand theft auto in San Diego, in 1939. As indicated by a 1951 letter from a Merced Police Department Inspector, Robert L. Kellerer, in 1941 plaintiff had been identified from a photograph as the person who had passed a forged check at a Merced chain store. The photograph of plaintiff was obtained by Merced from the San Diego Police Department, bearing its identification number 12356.

At some time after August 4, 1941, a notation was added to plaintiff's record at the Bureau, which stated as follows: '8--4--41. Merced P.D. Eugene White, wanted, fictitious checks. 'Rep. 285.' Subject is in El Reno, Oklahoma. Due to small amount involved, D.A. will not extradite. Still wanted if apprehended in California. L.E.T. 8--15--41.' In addition, the following aliases were added to plaintiff's record: 'Enos White,' 'Norman Railton,' 'Victor Kemp,' and 'J. B. Cabral.' Presumably, these were the names used on the fictitious checks.

In 1951, as a result of plaintiff's application to the National City Police Department for a police officer's position, the Bureau notified the Merced Police Department that plaintiff was in National City. Inspector Kellerer of the Merced Police Department replied as follows: 'Reference is made to your letter of September 1951 relative to Eugene White who was wanted by this department for passing of fictitious checks in 1941. Upon review of this file, I find that suspect had been identified from a photograph as the person who had passed a forged check at one of the local chain stores. However, no complaint was apparently filed against him as he was known to have left the state. As a result, due to the statute of limitations, this department has no further hold on this subject.

'A copy of the photograph of Gene Arthur White, San Diego P.D. 12356, is enclosed herewith for your files. A copy of this letter, as well as photograph, is being forwarded to Chief of Police, National City. Thank you for your information.'

In 1962, in connection with the employment of plaintiff by the Clovis Police Department, the Clovis Police Chief, Thomas Higgason, after having received the arrest record of plaintiff from the Bureau, wrote the Bureau as follows: 'Dear Sir: The subject enclosed states alias names are false. Would you check once again and send the information to us as soon as possible. CII 629212. Eugene Arthur White. Thank you for your attention. Very truly yours, Chief of Police.'

The Bureau replied as follows: 'October 9, 1962. Dear Chief: This Bureau has received your recent inquiry concerning Eugene Arthur White, CI&I 629212. Attached is a photostat of a fingerprint card of the subject, showing alias names as reported to this Bureau. If we may be of any further assistance in this matter, please do not hesitate to communicate with us. Yours very truly * * *.'

In 1967, plaintiff went to the Bureau seeking to examine his record as he believed it contained erroneous information. He was shown his file, and he denied that the record was his. He was advised by the Bureau that if information in the file was incorrect he should have the agency which submitted the information so advise the Bureau; that the information would not be deleted solely on his claim that it was false.

In 1967, at plaintiff's request for assistance, the Governor and others advised plaintiff to go to the Bureau to have the matter looked into, and Assemblyman Zenovich's office inquired into what the record contained in an attempt to assist plaintiff in his claim that the record was incorrect.

Before turning to the merits of this appeal, we note the following code provisions relating to the duties and responsibilities of the Bureau:

'The Attorney General shall exercise absolute control and management of the bureau.' (Pen.Code, § 11005.)

'The Attorney General shall procure from any available source, and file for record and report in the office of the bureau, all plates, photos, outline pictures, descriptions, information and measurements of all persons convicted of a felony, or imprisoned for violating any of the military, naval, or criminal laws of the United States of America, and of all well-known and habitual criminals.' (Pen.Code, § 11101.)

'The Attorney General shall file all plates, photographs, outline pictures, measurements, information and descriptions received and shall make a complete and systematic record and index, providing a method of convenience, consultation and comparison.' (Pen.Code, § 11104.)

'(a) The Attorney General shall furnish, upon application in accordance with the provisions of subdivision (b) of this section, copies of all information pertaining to the identification of any person, such as a plate, photograph, outline picture, description, measurement, or any data about such person of which there is a record in the office of the bureau.

'(b) Such information shall be furnished to all peace officers, district attorneys, probation officers, and courts of the state, to United States officers or officers of other states, territories, or possessions of the United States, or peace officer of other countries duly authorized by the Attorney General to receive the same, and to any public defender or attorney representing such person in proceedings upon a petition for certificate of rehabilitation and pardon pursuant to Section 4852.08, upon application in writing accompanied by a certificate signed by the peace officer, public defender, or attorney, stating that the information applied for is necessary for the due administration of the laws, and not for the purpose of assisting a private citizen in carrying on his personal interest or in maliciously or uselessly harassing, degrading or humiliating any person.

'(c) Such information shall not be furnished to any persons other than those listed in subdivision (b) of this section or as provided by law; provided, that such information may be furnished to any state agency, officer, or official when needed for the performance of such agency's, officer's, or official's functions.' (Pen.Code, § 11105.)

In this appeal from a judgment of nonsuit pursuant to section 581c of the Code of Civil Procedure, special rules are applicable:

'At the outset we note that the judgment of nonsuit operated as an adjudication upon the merits. (Citations.) Although the judgment of nonsuit is an adjudication upon the merits it is not treated on appeal like most appeals when it is the duty of the appellate court to indulge every reasonable intendment in favor of sustaining the trial court. The appropriate rule which the reviewing court must follow is that the court must view the evidence in the light most favorable to the appellant, must disregard all inconsistencies and draw only inferences from the evidence which can be reasonably drawn which are favorable to the appellant. (Citations.) It is only when the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff that the granting of a motion for nonsuit is warranted. (Citation.)' (Van Zyl v. Speigelberg (1969) 2 Cal.App.3d 367, 371--373, 82 Cal.Rptr. 689, 691.)

As previously noted, the Bureau is required by law to receive and file information, fingerprints, photographs, crime reports, and other data submitted by law enforcement agencies, and to furnish, upon application, such information to authorized persons. (In general, see article 3 (commencing with § 11100), ch. 1, pt. 4, tit. I, Pen.Code.)

In his complaint plaintiff makes a two-pronged attack. He first alleges that he was damaged by defendants' libelous utterances ¹ and secondly, that he was damaged through defendants' negligence and carelessness. With this background in mind, we turn to his contentions.

Plaintiff contends that the trial court erred when it held that the publication was absolutely privileged. In this connection, subdivision 1 of section 47 of the Civil Code provides:

'A privileged publication or broadcast is one made--

'1. In the proper discharge of an official duty.' He contends the word 'proper' is consistent with a qualified privilege (Saroyan v. Burkett (1962) 57 Cal.2d 706, 708--709, 21 Cal.Rptr. 557, 371 P.2d 293), and that it means 'free of negligence,' and was therefore a question for the jury.

In Saroyan, the court examined the history behind subdivision 1 of section 47, ² and ruled that the Superintendent of Banks was a state official corresponding in rank to federal cabinet officers, and thus press releases issued by him were absolutely privileged. Plaintiff contends that the individual defendants did not have a rank corresponding to federal cabinet officers. ³

On the other hand, defendants submit that the Saroyan decision did not limit the applicability of the...