Stanford Law School - Robert Crown Law Library

Filed 8/18/03

IN THE SUPREME COURT OF CALIFORNIA

ALLEN HASSAN,
Plaintiff and Appellant,
S106256
v.
Ct.App. 3 C026448
MERCY AMERICAN RIVER HOSPITAL, )

) Sacramento
County
Defendant and Respondent. )
Super. Ct. No. 95AS03007

Civil Code section 43.81 confers a privilege on “any person” who makes a
communication “to any hospital [or] hospital medical staff . . . when the
communication is intended to aid in the evaluation of the qualifications, fitness,
character, or insurability of a practitioner of the healing or veterinary arts.”
We must answer two related questions. First, is the statutory term “person”
limited to humans, or does it also include entities? Second, is the privilege
absolute or only qualified? We conclude that the privilege applies to entities, and
that the privilege is qualified. Because this is consistent with the Court of
Appeal’s decision, we affirm that court’s judgment.

1
All further statutory references are to the Civil Code.

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I
We recite the facts as set out in the record before the trial court when it
granted defendant’s motion for summary judgment. (Johnson v. City of Loma
Linda (2000) 24 Cal.4th 61, 65-66.)
From 1970 to 1986, plaintiff Allen Hassan was a member of the medical
staff of defendant Mercy American River Hospital (Mercy). In September 1993,
he applied for medical staff privileges at Roseville Community Hospital
(Roseville). Roseville then sent Mercy a letter asking for information about
plaintiff, including Mercy’s “[k]nowledge of past clinical performance noting
anything that warrants exercising caution in granting clinical privileges,” and
“verification . . . of [plaintiff’s] residency in psychiatry/neurology at Mendocino
State Hospital.”
Mercy’s written response to Roseville, in December 1993, included “copies
of letters received concerning [plaintiff’s] residency” and a copy of a
memorandum summarizing a telephone conversation on January 14, 1970, during
which the then associate medical director of Mendocino State Hospital
(Mendocino), in a conversation with Mercy’s then medical director, had
reportedly described plaintiff as “ ‘MILITANT’ vs. authority,” tending “to
identify with the underdog,” “too personally involved with problems of the
misfortunate or oppressed (Arabs esp.),” and a “ ‘MANIPULATOR’ of coworkers
and supervisors.”
In May 1994, Roseville rejected plaintiff’s application for staff privileges in
part because of “[n]egative recommendations from other hospitals,” including his
“resignation from [the] psychiatry program at Mendocino.” Plaintiff sought
reconsideration of Roseville’s decision, and eventually he entered into a settlement
agreement under which he withdrew his application for active staff membership
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and Roseville admitted him under the category of “Active Physicians with Limited
Hospital Privileges.”
In June 1995, plaintiff sued Mercy, asserting causes of action for
defamation, intentional interference with prospective business advantage, and
negligent interference with an economic relationship, all based on the January
1970 telephone conversation memorandum that Mercy forwarded to Roseville.
In November 1996, Mercy moved for summary judgment, asserting that its
communication to Roseville was privileged under section 43.8, which confers
immunity on communications to a hospital that is evaluating a medical
practitioner. Plaintiff opposed the motion, alleging that the staff member who
forwarded the memorandum to Roseville did so out of ill will because he had not
gotten along with plaintiff. Plaintiff described the memorandum as “devoid of any
significance ‘to aid the evaluation of [his] qualifications, fitness, character, or
insurability,’ ” because it was based on personal observations made some 26 years
earlier, was “rife with speculation,” and reflected “racism and inherent bias.”
The trial court granted Mercy’s motion for summary judgment. Relying on
Johnson v. Superior Court (1994) 25 Cal.App.4th 1564 (Johnson), the trial court
found that Mercy’s correspondence to Roseville was absolutely privileged under
section 43.8. Plaintiff appealed.
The Court of Appeal affirmed the judgment. It agreed with the trial court
that entities like Mercy could invoke the section 43.8 privilege, but it concluded
that the privilege was qualified, not absolute. Nonetheless, it determined that the
trial court properly granted summary judgment because Mercy’s moving papers in
support of summary judgment had established the conditions necessary for Mercy
to claim the privilege and plaintiff’s opposition papers had failed to raise a triable
issue of fact on the issue of malice.
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We granted plaintiff’s petition for review to resolve conflicts among the
Courts of Appeal over whether the term “person,” as used in section 43.8, includes
entities, and whether the Legislature intended that section to provide an absolute
or a qualified privilege.
II
As noted at the outset, section 43.8 confers a privilege on “any person” who
makes a communication to “any hospital” if the communication was “intended to
aid” in evaluating a medical practitioner’s “qualifications, fitness, character, or
insurability.” We consider first whether “any person” in this provision includes
entities like defendant Mercy.
Well-established rules of statutory construction require us to ascertain the
intent of the enacting legislative body so that we may adopt the construction that
best effectuates the purpose of the law. (Esberg v. Union Oil Co. (2002) 28
Cal.4th 262, 268.) We first examine the words themselves because the statutory
language is generally the most reliable indicator of legislative intent. (People v.
Trevino (2001) 26 Cal.4th 237, 241.) The words of the statute should be given
their ordinary and usual meaning and should be construed in their statutory
context. (Ibid.; see also Trope v. Katz (1995) 11 Cal.4th 274, 282; Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 570-571.) These canons
generally preclude judicial construction that renders part of the statute
“meaningless or inoperative.” (Manufacturers Life Ins. Co. v. Superior Court
(1995) 10 Cal.4th 257, 274.) In addition, words should be given the same
meaning throughout a code unless the Legislature has indicated otherwise.
(People v. Roberge (2003) 29 Cal.4th 979, 987; see also Department of Revenue of
Ore. v. ACF Industries, Inc. (1994) 510 U.S. 332, 342; People v. Nguyen (1999)
21 Cal.4th 197, 205; State of California v. Texaco (1988) 46 Cal.3d 1147, 1162.)
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Section 43.8 states, in pertinent part, that “no cause of action for damages
shall arise against, any person . . . .” (Italics added.) Section 43.8 does not define
the word “person,” but section 14, which defines certain words used in the Civil
Code, states that “the word person includes a corporation as well as a natural
person.” And this court long ago recognized that “person” in the Civil Code may
include “public or private corporations, or natural person[s].” (City of Pasadena v.
Stimson (1891) 91 Cal. 238, 248.)
Plaintiff urges us to limit “person” in section 43.8 to humans. In support,
he cites Axline v. Saint John’s Hospital and Health Center (1998) 63 Cal.App.4th
907 (Axline), in which a doctor sued a hospital after it had denied his application
to join its medical staff. In rejecting the hospital’s claim of privilege under section
43.8, the Court of Appeal said that, “[g]iven the express language [of section
43.8], the Hospital does not explain how it can fall within the definition of ‘any
person.’ ” (Axline, supra, at p. 913, italics added.)
The Court of Appeal here characterized that statement as “offhand
speculation,” apparently because the Axline court did not undertake an analysis of
section 43.8’s text or legislative history to determine whether entities could claim
the privilege. Moreover, it viewed the statement as mere dictum because it was
not necessary for the resolution of the case. In Axline, the doctor had challenged
the procedures the hospital had used in processing his application rather than, as
here, a communication between two hospitals about a doctor’s competence and
character. Consequently, the Axline court concluded that section 43.8’s privilege
was “not triggered” because “the alleged misconduct does not relate to the
communication of information to a hospital.” (Axline, supra, 63 Cal.App.4th at
p. 913.) Because the Axline court’s suggestion that a hospital was not a person
within the meaning of the term used in section 43.8 was a “comment . . . made in
passing, . . . unnecessary to resolve the issue in that case” (Colmenares v. Braemar
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Country Club, Inc. (2003) 29 Cal.4th 1019, 1028), we agree with the Court of
Appeal here that it was “mere dictum, thus lacking in precedential force” (ibid).
It is not disputed that defendant Mercy is a corporation and thus falls within
section 14’s definition of a person. Nonetheless, plaintiff insists that we must
consider whether the term “person” includes noncorporate entities because, he
asserts, some health care providers, such as nursing homes, are organized as
noncorporate entities. Plaintiff argues that applying section 14’s definition of
person to section 43.8 would limit section 43.8’s privilege to natural persons and
corporations, leading to an “absurd” result in which a medical provider organized
as a corporation could claim the privilege but a medical provider organized in
another way could not. We disagree with the premise of this argument.
Section 14’s definition of person as including corporations does not
necessarily limit section 43.8’s privilege to natural persons and corporations. As
this court has affirmed, the word “including” in a statute is “ordinarily a term of
enlargement rather than limitation.” (Ornelas v. Randolph (1993) 4 Cal.4th 1095,
1101; accord, Flanagan v. Flanagan (2002) 27 Cal.4th 766, 774.) Applying this
general principle, the Court of Appeal in Oil Workers Intl. Union v. Superior
Court (1951) 103 Cal.App.2d 512, 570, held that, for purposes of the statutes
governing contempt, an unincorporated association was a person as defined in
Code of Civil Procedure section 17, which, like Civil Code section 14, states that
“the word ‘person’ includes a corporation as well as a natural person.” (Italics
added.) The court reasoned that whether the term “person” in a provision of the
Code of Civil Procedure includes a corporation or a noncorporate entity is
ultimately a question of legislative intent. (See also Diamond View Limited v.
Herz (1986) 180 Cal.App.3d 612, 617-618 & fn. 6 [relying on evidence of
legislative intent to conclude that a limited partnership is not a person under Code
Civ. Proc. § 527.6].)
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The legislative history of section 43.8 strongly indicates that the Legislature
did not intend to limit the privilege to natural persons, and it contains no indication
that an entity could claim the privilege only if it was organized as a corporation.
Referring to the bill that enacted section 43.8, a legislative committee staff
analysis, which may be considered in determining legislative intent (Quelimane
Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 45, fn. 9), stated that “it is
the intent of the legislation that ‘person’ include natural and unnatural
individuals.” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3633
(1973-1974 Reg. Sess.) p. 2.)2 Additionally, the Legislature could have expressly
excluded all hospitals from the privilege, as it has done in other provisions
granting immunity from tort liability (e.g., § 43.7 [“This section shall not be
construed to confer immunity from liability on any . . . hospital.”]), but it did not
do so. Thus, neither the language nor the history of section 43.8 supports the
narrow definition of “person” advanced by plaintiff.
For these reasons, we conclude that “person” in section 43.8 includes
entities as well as humans.3
III
We now consider whether communications protected under section 43.8 are
absolutely privileged or only qualifiedly privileged.
California law recognizes two forms of privilege for communications: “An
‘absolute’ privilege excludes liability for a publication notwithstanding that it is
made with actual malice, whereas a ‘qualified’ or ‘conditional’ privilege does not

2
We have taken judicial notice of documents in the legislative record for
Assembly Bill No. 3633 (1973-1974 Reg. Sess.), the bill by which section 43.8
was enacted. (Stats. 1974, ch. 1086, § 1, p. 2313.)
3
To the extent it is inconsistent with this conclusion, the decision in Axline,
supra, 63 Cal.App.4th 907, is disapproved.
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protect a defendant who has acted maliciously.” (Saroyan v. Burkett (1962) 57
Cal.2d 706, 708; accord, Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912.)
In the context of communication privileges, malice has been described as “a state
of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or
injure another person.” (Agarwal v. Johnson (1979) 25 Cal.3d 932, 944; accord,
Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1204; Brown v. Kelly Broadcasting
Co. (1989) 48 Cal.3d 711, 723.) Traditionally, malice has included not only
deliberate falsehoods but also false statements made without reasonable grounds to
believe them true. (Kashian v. Harriman, supra, at p. 931; see also
Frommoethelydo v. Fire Ins. Exchange (1986) 42 Cal.3d 208, 217; Dorn v.
Mendelzon (1987) 196 Cal.App.3d 933, 945.) With qualified privileges, the
defendant bears the “initial burden of demonstrating that the allegedly defamatory
communication was made upon a privileged occasion, and the plaintiff then
[bears] the burden of proving that defendant . . . made the statement with malice.”
(Lundquist v. Reusser, supra, at p. 1208; Dorn v. Mendelzon, supra, at pp. 944-
945; Williams v. Taylor (1982) 129 Cal.App.3d 745, 752.)
The trial court here granted defendant Mercy’s summary judgment motion
because it found Mercy’s communication to Roseville about plaintiff’s
competence and character to be absolutely privileged under section 43.8. The
Court of Appeal majority disagreed that section 43.8 confers an absolute privilege.
In its view, a party may defeat the privilege with proof that the communicator
knew the information to be either false or patently irrelevant, although it also
concluded that plaintiff presented no such evidence here. On the other hand, the
concurring Court of Appeal justice agreed with the trial court that the section 43.8
privilege is absolute “even in the circumstance where [the communicator] lied, or
knew the information he conveyed did not bear on that evaluation.”
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As originally enacted in 1974, the section 43.8 privilege was qualified
rather than absolute. (See Hackethal v. Weissbein (1979) 24 Cal.3d 55, 60; Dorn
v. Mendelzon, supra, 196 Cal.App.3d at p. 943; see also Moore v. Conliffe (1994)
7 Cal.4th 634, 671 (dis. opn. of Baxter, J.).) Before it was amended in 1990,
section 43.8 read: “[T]here 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
[or] hospital medical staff . . . when such communication is intended to aid in the
evaluation of the qualifications, fitness, character, or insurability of a practitioner
of the healing or veterinary arts and does not represent as true any matter not
reasonably believed to be true.” (As amended by Stats. 1983, ch. 1081, § 2, pp.
3864-3865, italics added.) Thus, before the 1990 amendment, the privilege was
expressly conditioned on the communicator’s reasonable belief in the truth of the
information conveyed. The 1990 amendment removed the above italicized
language expressly imposing this condition. (Stats. 1990, ch. 1597, § 30, p. 7697.)
We must decide whether, by removing from section 43.8 the words “and
does not represent as true any matter not reasonably believed to be true,” the
Legislature intended to make the privilege absolute, or whether the privilege is
still qualified in light of the remaining requirement that the communication must
have been “intended to aid in the evaluation of the qualifications, fitness,
character, or insurability of a practitioner . . . .” This court has not previously
considered this issue, although a footnote in a decision of this court characterized
section 43.8 as affording “absolute immunity.” (Alexander v. Superior Court
(1993) 5 Cal.4th 1218, 1225, fn. 6; see also Axline, supra, 63 Cal.App.4th at
p. 913 [stating that section 43.8 “provides absolute immunity”].)
In concluding that the section 43.8 privilege is now absolute, the trial court
here relied on Johnson, supra, 25 Cal.App.4th 1564, in which the plaintiff doctor
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brought a malicious prosecution action against individuals who had acted as expert
consultants in disciplinary hearings against the plaintiff. (Johnson, supra, 25
Cal.App.4th at p. 1570.) The trial court overruled the defendants’ demurrer,
finding that the section 43.8 privilege was qualified. The Court of Appeal
disagreed, holding that “section 43.8 affords [the defendant expert consultants] a
complete defense.” (Johnson, supra, at p. 1567.) The court relied primarily upon
the Legislature’s statement of purpose for the 1990 legislation that included the
amendment of section 43.8. The Legislature declared that the Judicial Procedure
Improvement Act, of which the 1990 amendment of section 43.8 was a small part,
was intended to “restructure the physician discipline system of the Medical Board
of California in order to give it authority to act quickly in extreme cases to impose
interim protective measures . . . [and to give it] more information from a variety of
enhanced reporting sources and increased public outreach.” (Stats. 1990, ch.
1597, § 1, p. 7683.) From this broad statement of intent, the Court of Appeal in
Johnson inferred that “the Legislature intended to make the immunity . . . absolute
rather than conditional.” (Johnson, supra, at p. 1569.)
The Court of Appeal majority here rejected that conclusion as being
inconsistent with the text of section 43.8, which continues to require that the
communication be “intended to aid in the evaluation of the qualifications, fitness,
character, or insurability of a practitioner.” We agree with the Court of Appeal
that the privilege remains qualified rather than absolute, and that a plaintiff may
defeat a claim of privilege under section 43.8 by proving that the communicator
knew the information was false or otherwise lacked a good faith intent to aid in the
evaluation of the practitioner.
To determine the legislative intent, we begin with the language of the
statute, giving the words their ordinary and usual meaning. (People v. Trevino,
supra, 26 Cal.4th at p. 241.) The word “intended” ordinarily refers to a subjective
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mental state. As this court has stated: “To ‘intend’ means to have in mind as a
purpose or goal.” (People v. Osband (1996) 13 Cal.4th 622, 681; see also Waller
v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 17 [whether injury or damage is
“expected or intended” under an insurance policy is determined by reference to the
insured’s subjective mental state].) The word “aid” ordinarily means to assist or
help. (People v. Ott (1978) 84 Cal.App.3d 118, 129; People v. Ellhamer (1962)
199 Cal.App.2d 777, 781; Webster’s New World Dict. (2d college ed. 1982)
p. 28.) Therefore, a communication is “intended to aid” in the evaluation of a
medical practitioner when the communicator acts with a subjective purpose or
goal to help or assist in the evaluation.
The concurring justice in the Court of Appeal suggested that the phrase
“intended to aid in the evaluation of the qualifications, fitness, character, or
insurability of a practitioner” did not refer to the subjective goal or purpose of the
communicator, but instead referred merely to the environment or context in which
the communication was made. But this construction would not be consistent with
the ordinary meaning of these words, as we have explained. Had the Legislature
meant to refer merely to the context of the communication, it could have
manifested that intent by providing that the privilege would apply to any
communication “used” or “submitted for use” or “intended for use” in the
evaluation of a medical practitioner. By providing instead that the privilege
applied only to communications “intended to aid” in the evaluation, the
Legislature manifested an intent to require a form of subjective good faith
inconsistent with the communication of information known to be false.
The concluding sentence of section 43.8 provides additional support for this
interpretation. It states: “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.” If section 43.8 itself conferred an absolute privilege,
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there would be no reason for legislative concern that the section 43.8 privilege not
affect the availability of the absolute privilege under section 47. This legislative
concern necessarily implies that the section 43.8 privilege is more limited than the
section 47 privilege, or, in other words, that the section 43.8 privilege is qualified
rather than absolute.
The legislative history of section 43.8 confirms this view. In 1974, when
section 43.8 was being considered for adoption, Senate committee staff provided
this analysis of the proposed legislation: “Adequate protection against
unwarranted and unlimited defamation of practitioners of the healing arts appears
present by the requirement that the communication is privileged only if the
following facts exist: [¶] (a) The communication is made to hospitals, hospital
medical staff, professional societies, medical and dental schools, or professional
licensing boards. [¶] (b) The communication is intended to aid in the evaluation
of the qualifications, fitness, or character of a practitioner of the healing arts. [¶]
(c) The communication does not represent as true any matter not reasonably
believed to be true.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3633
(1973-1974 Reg. Sess.) p. 3, original underscoring.)
Thus, the legislative record shows that, when it first enacted section 43.8,
the Legislature understood that the privilege would protect medical practitioners
against defamation through its provisions specifying (1) the identity of the entity
or organization to whom the communication was made, (2) the subjective purpose
or goal of the communicator to help or assist in the evaluation of the practitioner,
and (3) a reasonable basis for the communicator’s belief in the truth of the
information communicated.
The 1990 amendment of section 43.8 removed the last of these protective
requirements as an element of the privilege. After the 1990 amendment, in other
words, a communicator has no affirmative duty to verify the truth of the
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information conveyed and will not be required to establish a reasonable basis for
believing the information to be true. But the 1990 amendment left in place the
requirements that the communication must have been made to one of the listed
groups and that the communicator must have acted with the specified intent—that
is, the intent “to aid in the evaluation of the qualifications, fitness, character, or
insurability of a practitioner.”
The concurring Court of Appeal justice suggested that if the Legislature
intended only to remove the duty to verify the truth of the information conveyed,
the Legislature could have accomplished that goal merely by deleting the word
“reasonably” from the requirement that the communication “does not represent as
true any matter not reasonably believed to be true.” But a requirement phrased in
this way would still require the communicator to have a subjective belief in the
truth of the information communicated, thus making the privilege unavailable
when the communicator was merely passing on relevant information received
from a third party without any basis to believe or disbelieve the information. The
Legislature may well have concluded that a privilege conditioned in this way
would be too restrictive, and that it would be preferable to require only that the
communicator subjectively had the purpose or goal to help the evaluation by
providing available information that could bear on the medical provider’s
qualifications, fitness, character, or insurability.
We have reviewed the legislative record for the 1990 amendment of section
43.8, and we find in it no indication that the Legislature intended that section 43.8
as amended would afford an absolute privilege that would immunize the
communication of knowingly false and defamatory statements about a medical
practitioner. To the contrary, a Senate committee analysis affirmed that “[i]t is
obviously in the public interest to encourage reports of professional malfeasance
by immunizing individuals from any liability for communicating in a truthful,
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non-malicious manner.” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 2375
(1989-1990 Reg. Sess.) p. 11, italics added.) Another Senate committee staff
analysis stated that the 1990 amendment to section 43.8 would “[i]ncrease
immunity protection” (Sen. Com. on Business and Professions, Analysis of Sen.
Bill No. 2375 (1989-1990 Reg. Sess.) p. 5), but, significantly, it did not say that
the amendment would make the privilege absolute.
We note that the legislative record for the 1990 amendment of section 43.8
contains at least three letters, including one from the Medical Board of California,
asserting that the amendment would make section 43.8’s privilege absolute. But
the lack of support for this interpretation from any source within the Legislature
itself confirms the Court of Appeal’s conclusion that these letters state the views
of the writers, not the intent of the Legislature. Therefore, the letters have no
persuasive value for our interpretation of the statute. (See In re Marriage of
Pendleton & Fireman (2000) 24 Cal.4th 39, 47, fn. 6 [“There is no basis for an
assumption that such letters reflect legislative intent.”].)
Reading section 43.8 as establishing an absolute privilege would be
contrary to canons of statutory construction because it would render meaningless
the statutory language requiring that the communication be “intended to aid in the
evaluation of the qualifications, fitness, character, or insurability of a practitioner.”
(Ibid.) Although these words do not require that the communication actually assist
the receiving party in evaluating the doctor’s “qualifications, fitness, character, or
insurability,” they do require that the communicator make the communication with
a particular subjective intent. Because false information of any sort has no value
in evaluating a medical practitioner, the communication of information known to
be false cannot be intended to help or assist in that evaluation, or, in other words,
an intent to deceive is inconsistent with an intent to aid. Thus, proof that the
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communicator knew the information to be false when it was conveyed establishes
malice sufficient to defeat the qualified section 43.8 privilege.
Mercy and the amici curiae who have jointly submitted a brief in support of
Mercy offer various policy arguments to persuade us that an absolute privilege is
better than a qualified privilege in the situation that section 43.8 addresses. They
agree with the assertion of the Court of Appeal in Johnson that, unless communicators
are given an absolute privilege, “the threat of being sued . . . would deter all but the
most fearless . . . [and] the Boards’ disciplinary activities would soon grind to a halt.”
(Johnson, supra, 25 Cal.App.4th at p. 1570.) On the other side, plaintiff argues that,
as a matter of policy, a qualified privilege is better than an absolute privilege because
it deters malicious conduct that causes real injury to medical professionals while still
providing immunity for communications made in good faith. Plaintiff also points out
that although some absolute privileges may be defended on the basis that the injured
person has alternative remedies (see, e.g., Silberg v. Anderson (1990) 50 Cal.3d 205,
218-219), there are no alternative remedies, civil or criminal, for injurious
communications made in the context addressed by section 43.8. These competing
policy arguments are “best directed to the Legislature, which can study the various
policy and factual questions and decide what rules are best for society.” (Carrisales
v. Department of Corrections (1999) 21 Cal.4th 1132, 1140.) Our task here is to
construe the statute as it is now written.
For the reasons given above, we conclude that when the Legislature
amended section 43.8 in 1990, it did not intend to change the privilege from a
qualified to an absolute privilege.4

4
To the extent they are inconsistent with this conclusion, the decisions in
Johnson, supra, 25 Cal.App.4th 1564, Axline, supra, 63 Cal.App.4th 907, and
Alexander v. Superior Court, supra, 5 Cal.4th 1218, are disapproved.
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CONCLUSION
Having considered the text of section 43.8, its legislative history, and
related provisions of the Civil Code, we conclude: (1) Entities as well as natural
persons may claim the section 43.8 privilege, and (2) the privilege is not absolute
but instead may be defeated by proof that the person or entity asserting the
privilege, when it made the communication, knew the information was false or
otherwise lacked a good faith intent to assist in the medical practitioner’s
evaluation.
The judgment of the Court of Appeal is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.

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CONCURRING AND DISSENTING OPINION BY BROWN, J.

I agree with the majority that the privilege conferred on persons by Civil
Code section 43.8 (hereafter all statutory references are to the Civil Code) applies
to entities as well as humans. However, I disagree with the majority’s conclusion
that section 43.8 provides only qualified immunity.
The purpose of the 1990 amendment was to increase the immunity
conferred by section 43.8, as the majority acknowledges. (Maj. opn., ante, at p.
14.) “As originally enacted in 1974, the section 43.8 privilege was qualified rather
than absolute. (See Hackethal v. Weissbein (1979) 24 Cal.3d 55, 60; Dorn v.
Mendelzon (1987) 196 Cal.App.3d 933, 945; see also Moore v. Conliffe (1994) 7
Cal.4th 634, 671 (dis. opn. of Baxter, J.).) Before it was amended in 1990, section
43.8 read: ‘[T]here 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
[or] hospital medical staff . . . when such communication is intended to aid in the
evaluation of the qualifications, fitness, character, or insurability of a practitioner
of the healing or veterinary arts and does not represent as true any matter not
reasonably believed to be true.’ (As amended by Stats. 1983, ch. 1081, § 2, pp.
3864-3865, italics added.) Thus, before the 1990 amendment, the privilege was
expressly conditioned on the communicator’s reasonable belief in the truth of the
information conveyed. The 1990 amendment removed the above italicized
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language expressly imposing this condition. (Stats. 1990, ch. 1597, § 30, p.
7697.)” (Maj. opn., ante, at p. 9.)
The issue before us, as the majority states, is “whether, by removing from
section 43.8 the words ‘and does not represent as true any matter not reasonably
believed to be true,’ the Legislature intended to make the privilege absolute, or
whether the privilege is still qualified in light of the remaining requirement that
the communication must have been ‘intended to aid in the evaluation of the
qualifications, fitness, character, or insurability of a practitioner . . . .’ ” (Maj.
opn., ante, at p. 9.)
The majority concludes the section 43.8 privilege remains qualified.
“Because false information of any sort has no value in evaluating a medical
practitioner, the communication of information known to be false cannot be
intended to help or assist in that evaluation, or, in other words, an intent to deceive
is inconsistent with an intent to aid. Thus, proof that the communicator knew the
information to be false when it was conveyed establishes malice sufficient to
defeat the qualified section 43.8 privilege.” (Maj. opn., ante, at pp. 14-15.)
The crucial misstep in the argument the majority makes in support of its
conclusion is assuming that intended, as used in section 43.8, refers to the intent of
the person providing the communication. (Maj. opn., ante, at p. 11.)
The Legislature was, instead, referring to the intent of the hospital or
hospital staff in soliciting the communication, namely, that the information is
being sought to aid in an evaluation of a practitioner’s fitness, character, or
insurability. That is what Justice Hull was driving at in his concurring and
dissenting opinion below. “[T]he words refer to and describe the nature and
subject matter of the proceedings in which the communication is made, not the
state of mind of the communicator.”
The validity of this construction is demonstrated by Dorn v. Mendelzon,
supra, 196 Cal.App.3d 933 (Dorn). In Dorn, the plaintiff sued for defamation,
2

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among others, a hospital administrator named Manley. The plaintiff had applied
for staff privileges at Centinela Hospital Medical Center (Centinela). Learning of
a Board of Medical Quality Assurance report with regard to the restriction of
plaintiff’s staff privileges at Broadway Hospital (Broadway), the Centinela
credentials committee wrote a letter of inquiry to Manley, who was the
administrator of a hospital that had purchased Broadway’s assets. It was Manley’s
response to Centinela that the plaintiff claimed to be defamatory. Because of the
context in which Manley made the challenged communication, the Court of
Appeal held that the then qualified privilege applied. “The Manley letter was
certainly intended to aid in the evaluation of plaintiff’s qualifications, and plaintiff
does not contend otherwise. In fact, the letter was solicited by Centinela’s
credentials committee for the purpose of assisting its consideration of plaintiff’s
application for staff privileges. Thus, the qualified immunity for communications
evaluative of medical practitioners set forth in section 43.8 is applicable.” (Dorn,
at p. 944, italics in orig.)
“The Legislature, of course, is deemed to be aware of statutes and judicial
decisions already in existence, and to have enacted or amended a statute in light
thereof. (People v. Overstreet (1986) 42 Cal.3d 891, 897.) Where a statute is
framed in language of an earlier enactment on the same or an analogous subject,
and that enactment has been judicially construed, the Legislature is presumed to
have adopted that construction. (Union Oil Associates v. Johnson (1935) 2 Cal.2d
727, 734-735.)” (People v. Harrison (1989) 48 Cal.3d 321, 329.) Therefore, the
Legislature, in amending section 43.8 , must be presumed to have had Dorn in
mind, and to have understood, consistent with Dorn, that the phrase intended to
aid referred to the intent in soliciting the communication, not the intent in
providing it.
The majority seeks support for its interpretation in the final sentence of
section 43.8, which states: “The immunities afforded by this section and by
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Section 43.7 shall not affect the availability of any absolute privilege which may
be afforded by Section 47.” “If section 43.8 itself conferred an absolute
privilege,” the majority argues, “there would be no reason for legislative concern
that the section 43.8 privilege not affect the availability of the absolute privilege
under section 47. This legislative concern necessarily implies that the section 43.8
privilege is more limited than the section 47 privilege, or, in other words, that the
section 43.8 privilege is qualified rather than absolute.” (Maj. opn., ante, at pp.
11-12.)
The majority has misconstrued the significance of the final sentence of
Civil Code section 43.8. This is demonstrated by the fact that Business and
Professions Code section 2318, which clearly creates absolute immunity,
concludes with the same sentence.
Business and Professions Code section 2318 provides: “In addition to any
immunity afforded by Sections 43.8 and 47 of the Civil Code, if applicable, any
person, including, but not limited to, a physician and surgeon, hospital, health
facility as defined in Section 1250 of the Health and Safety Code, nursing home,
convalescent home, peer review body as defined in Section 805, medical society,
professional association, patient, nurse, or other healing arts licensee who provides
information to the board, to the California Board of Podiatric Medicine, or to the
Department of Justice indicating that a board licensee may be guilty of
unprofessional conduct or may be impaired because of drug or alcohol abuse or
mental illness, shall not be liable for any damages in any civil action on account of
the communication of that information to the board. The immunities afforded by
this section shall not affect the availability of any absolute privilege which may be
afforded by Section 47 of the Civil Code.” (Stats. 1990, ch. 1597, § 22, pp. 7694-
7695.)
Civil Code section 43.8 was amended (Stats. 1990, ch. 1597, § 30, p. 7697)
and Business and Professions Code section 2318 was enacted (Stats. 1990, ch.
4

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1597, § 22, pp. 7694-7695) by Senate Bill No. 2375 (1989-1990 Reg. Sess.).
They were elements of a comprehensive reform of California’s system of
discipline against medical practitioners, a system the Legislature declared to be
“inadequate to protect the health, safety, and welfare of the people of California
against incompetent or impaired physicians.” (Stats. 1990, ch. 1597, § 1, p. 7683.)
The immunity provided by Business and Professions Code section 2318 is clearly
absolute: “[A]ny person . . . who provides information to the board . . . indicating
that a board licensee may be guilty of unprofessional conduct or may be impaired
. . . shall not be liable for damages in any civil action on account of the
communication of that information to the board.” And yet, like the final sentence
of Civil Code section 43.8, the final sentence of Business and Professions Code
section 2318 provides that the immunities afforded by it “shall not affect the
availability of any absolute privilege which may be afforded by Section 47 of the
Civil Code.”
Finally, the majority fails to give sufficient weight to the important public
policy served by according witnesses an absolute privilege against defamation
actions, namely, that such a privilege is established, not for the benefit of
witnesses, but for that of the public and the advancement of the administration of
justice, to prevent witnesses from being deterred from coming forward and
testifying to the truth by the fear of having actions brought against them.
(Hackethal v. Weissbein (1979) 24 Cal.3d 55, 65 (dis. opn. of Tobriner, J.).) The
majority summarily dismisses this consideration, saying that competing public
policy arguments are best resolved by the Legislature. (Maj. opn, ante, at p. 15.) I
agree in principle, of course, on the Legislature’s primacy in such matters. My
concern is that the Legislature has already made its decision on this question, in
favor of absolute immunity, and that we are failing to implement it.
BROWN, J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Hassan v. Mercy American River Hospital
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted

XXX 96 Cal.App.4th 1333
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S106256
Date Filed: August 18, 2003
__________________________________________________________________________________

Court:

Superior
County: Sacramento
Judge: John R. Lewis

__________________________________________________________________________________

Attorneys for Appellant:

The Advani Law Firm, Kelly, Herlihy, Advani & Klein, The Schinner Law Group, Law Offices of Mukesh
Advani, Mukesh Advani, Jerry Schreibstein and R. David Bolls III for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Diepenbrock, Wulff, Plant & Hannegan, Sean O. Sheridan, John A. Bachman; Riegels, Campos & Kenyon
and Charity Kenyon for Defendant and Respondent.

Catherine I. Hansen and Gregory M. Abrams for California Medical Association, California Dental
Association and California Healthcare Association as Amici Curie on behalf of Defendant and Respondent.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Mukesh Advani
Law Offices of Mukesh Advani
4984 El Camino Real, Suite 200
Los Altos, CA 94022
(650) 961-2008

Charity Kenyon
Riegels, Campos & Kenyon
2500 Venture Oaks Way, Suite 220
Sacramento, CA 95833
(916) 779-7100
2

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Opinion Information

Date:	Docket Number:
Mon, 08/18/2003	S106256

Disposition
Aug 18 2003	Opinion: Affirmed

Dockets
Apr 26 2002	Petition for review filed   by Appellant Allen Hassan, M.D.
Apr 26 2002	Record requested
Apr 29 2002	Received Court of Appeal record   1-doghouse
Jun 17 2002	Time extended to grant or deny review   to and including July 25, 2002.
Jul 17 2002	Letter sent to:   counsel re certification of interest.
Jul 17 2002	Petition for review granted; issues limited (civil case)   The issues to be briefed and argued shall be limited to whether Civil Code section 43.8 applies to hospitals as well as to natural persons and whether the section 43.8 privilege is absolute or conditional. Brown, J., was absent and did not participate. Votes: George, CJ., Kennard, Werdegar and Moreno, JJ.
Jul 29 2002	Certification of interested entities or persons filed   by counsel for appellant Allen Hassan.
Jul 31 2002	Certification of interested entities or persons filed   by California Medical Assoc. (non-party).
Aug 5 2002	Certification of interested entities or persons filed   by counsel for respondent Mercy American River Hospital.
Aug 5 2002	Request for extension of time filed   by counsel for appellant asking to Sept. 15, 2002 to file opening brief on the merits. **ok to grant. Order being prepared.**
Aug 8 2002	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including September 15, 2002.
Sep 6 2002	Request for extension of time filed   To September 25, 2002 to file Appellant's Opening Brief on the Merits.
Sep 10 2002	Extension of time granted   To September 25, 2002 to file appellant's opening brief on the merits.
Sep 25 2002	Opening brief on the merits filed   By counsel for appellant {Allen Hassan}.
Oct 17 2002	Request for extension of time filed   by counsel for respondent requesting to Nov. 25, 2002 to file the answer brief on the merits. **Granted - order being prepared.**
Oct 22 2002	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including Nov. 25, 2002.
Nov 14 2002	Request for extension of time filed   counsel for respondent requesting to Dec. 9, 2002 tof file answer brief on the merits.
Nov 19 2002	Extension of time granted   On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including Dec. 9, 2002.
Dec 9 2002	Answer brief on the merits filed   in Sacramento by counsel for respondent (Mercy American River Hospital).
Dec 17 2002	Request for extension of time filed   by counsel for appellant asking to Jan. 14, 2003 to file reply brief.
Dec 20 2002	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including January 14, 2003.
Jan 7 2003	Note: Mail returned and re-sent   to Atty Mukesh Advani. (extension order filed 12/20/02)
Jan 10 2003	Notice of substitution of counsel received   Appellant (Allen Hassan) substitutes Mukesh Advani of Law Offices of Mukesh Advani instead of The Schinner Law Group as his counsel of record.
Jan 13 2003	Reply brief filed (case fully briefed)   by counsel for appellant Allen Hassan, M.D.
Feb 13 2003	Received application to file amicus curiae brief; with brief   by California Medical Assoc., California Dental Assoc., and California Healthcare Assoc. in support of respondent. (appli & brief separate)
Feb 13 2003	Received:   Request for judicial notice from amicus applicants California Medical Assoc. et al..
Feb 20 2003	Permission to file amicus curiae brief granted   California Medical Assoc., California Dental Assoc., and California Healthcare Assoc.
Feb 20 2003	Amicus Curiae Brief filed by:   The application of California Medical Assoc., California Dental Assoc., and California Healthcare Assoc. for permission to file an amicus curiae brief and request for Judicial Notice in support of respondent is herby granted. An answer may be served by any party within 20 days of the filing of the brief.
Mar 4 2003	Request for extension of time filed   by appellant requesting to March 27, 2003 to file answer to amicus brief filed by Calif. Medical Assoc. et al. (granted - order being prepared)
Mar 10 2003	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file the answer to amicus brief filed on behalf of Calif. Medical Assoc. et al., is extended to and including March 27, 2003.
Mar 27 2003	Response to amicus curiae brief filed   by appellant. Answer to amici brief filed by Calif. Medical Assoc. et al.
Apr 30 2003	Case ordered on calendar   5-28-03, 9am, S.F.
May 14 2003	Request for judicial notice granted   The motion of Amici Curiae California Medical Association, California Dental Association, and California Healthcare Association, filed in this court on Feb. 20, 2003, for judicial notice is granted.
May 16 2003	Change of Address filed for:   Mukesh Advani, counsel for appellant (Allen Hassan).
May 28 2003	Cause argued and submitted
Aug 18 2003	Opinion filed: Judgment affirmed in full   Majority Opinion by Kennard, J. -----Joined by George, CJ., Baxter, Werdegar, Chin and Moreno, JJ. C & D Opinion by Brown, J.
Sep 24 2003	Remittitur issued (civil case)

Briefs
Sep 25 2002	Opening brief on the merits filed
Dec 9 2002	Answer brief on the merits filed
Jan 13 2003	Reply brief filed (case fully briefed)
Feb 20 2003	Amicus Curiae Brief filed by:
Mar 27 2003	Response to amicus curiae brief filed

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