Hackethal v. Weissbein ( 1979 )

Opinion

NEWMAN, J.

— Plaintiff has appealed from judgments of dismissal in three consolidated actions after the trial court sustained demurrers, without leave to amend, on the ground that allegedly defamatory publications were immunized by these words of Civil Code section 47: “A privileged publication ... is one made . . . [i]n any (1) legislative or (2) judicial proceeding, or (3).in-any other official proceeding authorized by law . . . -”¹ The parties agree that the privilege — if those words create it — would be' absolute, not qualified.

The issue here is whether a hearing before the judicial commission of a private medical society is an “official proceeding authorized by law” within the scope of Civil Code section 47.

Plaintiff is a doctor and a specialist in internal medicine. In 1975 he was accused by the public service committee of the San Bernardino County Medical Society (SBCMS) of violating certain principles of ethics of the American Medical Association. Hearings were held before the SBCMS judicial commission, and he was expelled from SBCMS membership. Defendants appeared at the hearing as witnesses and presented derogatory information as to his methods of medical practice.

The first cause of action in each of the three complaints seeks damages on the ground that defendants’ testimony was negligently given, in that they did not make reasonable efforts to ascertain the truth and did not reasonably believe that the testimony was warranted by facts known to them. The second cause of action alleges that the testimony was motivated by malice.

Was the medical society hearing “official”?

It is argued here that the SBCMS hearing did constitute an “official proceeding authorized by law” because the members of even a private association may not be expelled without charges, notice, and hearing. (See Pinsker v. The Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541 [81 Cal.Rptr. 623, 460 P.2d 495].)

Ascherman v. Natanson (1972) 23 Cal.App.3d 861 [100 Cal.Rptr. 656] held that a hearing by the directors of a public hospital district on a doctor’s application for staff privileges was an official proceeding authorized by law. The court inquired as to “(1) whether the administrative body is vested with discretion based upon investigation and consideration of evidentiary facts, (2) whether it is entitled to hold hearings and decide the issue by the application of rules of law to the ascertained facts and, more importantly (3) whether its power affects the personal or property rights of private persons . . . .” (23 Cal.App.3d at p. 866.)

In Ascherman as in nearly all the pertinent cases the body conducting the hearing was a government agency. (See Imig v. Ferrar (1977) 70 Cal.App.3d 48 [138 Cal.Rptr. 540] (police department); Frisk v. Merrihew (1974) 42 Cal.App.3d 319 [116 Cal.Rptr. 781, 85 A.L.R.3d 1128] (school board); King v. Borges (1972) 28 Cal.App.3d 27 [104 Cal.Rptr. 414] (real estate commissioner); Wyatt v. Tahoe Forest Hospital District (1959) 174 Cal.App.2d 709 [345 P.2d 93] (public district).)

Goodley v. Sullivant (1973) 32 Cal.App.3d 619 [108 Cal.Rptr. 451] seems to be the only case that equates private with public. The hearings there were before committees of a private hospital to consider suspension of a doctor’s privileges. The court ruled that Ascherman should apply to private hospitals because Business and Professions Code section 2392.5 requires every hospital having five or more doctors to promulgate rules for the operation of the hospital, including rules to help assure the competency of the medical staff. The mere fact that a statute requires the creating of committees or other groups does not, however, mean that each body so formed is “official.” The committees of a private hospital are not government agencies. (Cf. Tobriner & Grodin, The Individual and the Public Service Enterprise in the New Industrial State (1967) 55 Cal.L.Rev. 1247, 1255, fn. 35.) The requirement in subdivision (c) of section 2392.5 that the medical staff be “self-governing” also indicates that the Legislature had no intent to create “official” bodies.

Katz v. Rosen (1975) 48 Cal.App.3d 1032 [121 Cal.Rptr. 853] ruled that the hearing by a local bar association to consider the expulsion of one of its members is not official. McMann v. Wadler (1961) 189 Cal.App.2d 124 [11 Cal.Rptr. 37] similarly ruled that a proceeding by the directors of a dairymen’s association is not official. The court stated that an “ ‘official proceeding’... [is one] which resembles judicial and legislative proceedings, such as transactions of administrative boards and quasi-judicial and quasi-legislative proceedings, not a meeting of a board of directors of a nonprofit corporation or the like. (See Prosser on Torts [2d ed.], § 95; Gunsul v. Ray, 6 Cal.App.2d 528, 530 .. . .)” (189 Cal.App.2d at p. 129.)

Legislative history

The Civil Code’s original section 47 used the adjective “official” only in subdivision 1 (“official duty”) and subdivision 4 (“official proceeding”). Section 47, subdivision 2 read, “In testifying as a witness in any proceeding authorized by law . . . .”

In the history of the 1873-1874 amendment that affects our analysis here we find no explanation of the amendment. What the amenders did was to revise section 47, subdivision 2 to read, “in any legislative or judicial proceeding, or in any other official proceeding authorized by law . . . .” (Italics added.) The intent of adding the word “official” may well have been to deny the absolute privilege in nongovernment proceedings.² We could hardly construe the words “official duty” in section 47, subdivision 1, unchanged since 1872, to include nongovernment duties. The words of section 47, subdivision 2 — “in any . . . official proceeding” — similarly merit no extension.³

Does Civil Code § 43.8 imply that § 47(2) ’s absolute privilege extends to the hearings described in § 43.8?

Section 43.8, enacted in 1974 (and amended in 1975, 1976, and 1977), extends a qualified privilege to communications that are “intended to aid in the evaluation of the qualifications, . . .” of a doctor if there is not represented as true any matter not reasonably believed to be true and if the communications are addressed “to any hospital, hospital medical staff, professional society, medical or dental school, professional licensing board or division, committee or panel of such licensing board, peer review committee, or underwriting committee . . . .”⁴ (See also § 43.7, regarding action “without malice.”) The protection of section 43.8 is “[i]n addition to the privilege afforded by Section 47,” and “[t]he immunities afforded . . . shall not affect the availability of any absolute privilege which may be afforded by Section 47.”

Since the Legislature in 1974 apparently intended to create additional immunity, the draftsmen must have concluded that at least some proceedings covered by section 43.8 until then had not been protected by section 47, subdivision 2. The intent seems to have been (1) to provide immunity to bodies not previously protected, and (2) to provide only a qualified immunity for communications made to a variety of medical groups.

The hearing in our case was a section 43.8 hearing, not a section 47, subdivision 2, “official proceeding.” The enactment of section 43.8 makes sense because section 47, subdivision 2 applies exclusively to government agencies. The new section extends a qualified privilege to communications made to private groups; it does not imply that those groups benefit too from section 47, subdivision 2’s absolute privilege.

The trial court should not have sustained the demurrers. The judgments are reversed.⁵

Bird, C. J., Mosk, J., and Manuel, J., concurred.

1 The section in its entirety reads: “A privileged publication or broadcast is one made—

“1. In the proper discharge of an official duty.

“2. In any (1) legislative or (2) judicial proceeding, or. (3) in any other official proceeding authorized by law; provided, that an allegation or averment contained in any pleading or affidavit filed in an action for divorce or an action prosecuted under Section 137 of this code made of or concerning a person by or against whom no affirmative relief is prayed in such action shall not be a privileged publication or broadcast as to the person making said allegation or averment within the meaning of this section unless such pleading be verified or affidavit sworn to, and be made without malice, by one having reasonable and probable cause for believing the truth of such allegation or averment and unless such allegation or averment be material and relevant to the issues in such action.

“3. In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supposing the motive for the communication innocent, or (3) who is requested by the person interested to give the information.

“4. By a fair and true report in a public journal, of (1) a judicial, (2) legislative, or (3) other public official proceeding, or (4) of anything said in the course thereof, or (5) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant shall have been issued.

“5. By a fair and true report of (1) the proceedings of a public meeting, if such meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.”

2 Because the Code Commissioners in 1872 had cited page 317 of 1 Hilliard on Torts (1866), which leads into a discussion of nongovernment proceedings (on pp. 328-329), the 1873-1874 revisers might well have believed that section 47, subdivision 2, if left unamended, would apply to such proceedings.

3 In general there is no legal requirement that members of private bodies take any oath of office. Nor is it required that witnesses before them take a testimonial oath — which means, of course, that the threat of a perjury charge is generally no deterrent.

4 Civil Code section 43.8 reads: “In addition to the privilege afforded by Section 47, there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of the communication of information in the possession of such person to any hospital, hospital medical staff, professional society, medical or dental school, professional licensing board or division, committee or panel of such licensing board, peer review committee, or underwriting committee described in Section 43.7 when such communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing arts and does not represent as true any matter not reasonably believed to be true. The immunities afforded by this section and by Section 43.7 shall not affect the availability of any absolute privilege which may be afforded by Section 47.”

5 Goodley v. Sullivant, supra, 32 Cal.App.3d 619, cited approvingly in Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465, 482 [131 Cal.Rptr. 90, 551 P.2d 410], is disapproved to the extent it is inconsistent with views expressed herein.