Stanford Law School - Robert Crown Law Library

Filed 1/5/04 (This opn. precedes companion opn. in Mulder, filed same date.)



IN THE SUPREME COURT OF CALIFORNIA



LYDIA ORTIZ HAGBERG,

Plaintiff and Appellant,

S105909

v.

Ct.App. 2/2 B146368

CALIFORNIA FEDERAL BANK FSB,

Los Angeles County

Defendant and Respondent. )

Super. Ct. No. BC216052



We granted review in this case to consider whether tort liability may be

imposed for statements made when a citizen contacts law enforcement personnel

to report suspected criminal activity on the part of another person. As we shall

explain, we agree with the trial court, the Court of Appeal, and the great weight of

authority in this state in concluding that such statements are privileged pursuant to

Civil Code section 47, subdivision (b) (section 47(b)),1 and can be the basis for

tort liability only if the plaintiff can establish the elements of the tort of malicious

prosecution.

I

Plaintiff Lydia Ortiz Hagberg, a Hispanic woman, opened an account at a

Pasadena branch of California Federal Bank, FSB (Cal Fed). A few months later

she appeared at this branch to cash a check made out to her by the commercial


1

Statutory references are to the Civil Code unless otherwise indicated.

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institution Smith Barney. She presented her California driver’s license, her Cal

Fed ATM card, the Smith Barney check, and her Smith Barney account summary,

along with the envelope in which she had received the check. The teller, also

apparently a Hispanic woman, suspected that the check was a counterfeit and

brought it to her supervisor, Nolene Showalter, apparently a person of European

descent. Showalter agreed that the check had a suspicious appearance, in that

some of the print was “fuzzy and unclear” or “smudged” and part of the address

line was missing — features not commonly found on Smith Barney checks.

Showalter contacted Smith Barney by telephone, was informed that the check was

not valid, and then contacted Cal Fed’s corporate security office. The regional

security manager, Gary Wood, instructed her to telephone the police, and she did

so. A transcript of the telephone call to the police discloses that Showalter

explained that Hagberg had attempted to negotiate a counterfeit check. The police

dispatcher asked questions concerning the identity and appearance of the person

attempting to cash the check, apparently in order to assist the police in determining

whom they should contact at the bank. Showalter answered these questions and

also volunteered that the bank’s corporate security officer “just wants somebody to

hang on to her [until] he can check this out. Because our first call to them, they

said it was counterfeit . . . . [¶] And we’ve taken a lot of losses.” The dispatcher

asked the person’s ethnicity, and Showalter answered, “White — well, maybe

Hispanic; kind of reddish hair, short.”

While Showalter spoke to the police dispatcher, Wood, the bank’s regional

security manager, himself telephoned Smith Barney and was informed that the

check was valid and that the information earlier received by Showalter from Smith

Barney was erroneous. This information was relayed to Showalter, who

interrupted her statement to the police dispatcher with the news. She informed the

dispatcher that Cal Fed no longer required the assistance of the police and that the

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bank was “getting into trouble here with this.” The dispatcher responded that the

police were already at the bank, and when Showalter looked up, she could see a

police officer approaching Hagberg. Showalter asked the dispatcher if she should

tell the police officers to leave, and the dispatcher told her to do so. Showalter

stated in her declaration that she “immediately walked over to the teller window as

the police officers were approaching the customer” and that she “reached over the

teller’s desk with [her] hand to catch their attention and told the police we had

canceled the call.” She stated: “The police, however, proceeded with an

investigation and detained the customer.” Showalter did not speak to Hagberg.

Hagberg testified at her deposition that a police officer drew her away from

the teller’s window, spread her legs, patted her down, and handcuffed her. Her

handbag was searched, and the officer asked her whether she was in possession of

weapons or stolen property and whether she was driving a stolen vehicle.

Hagberg testified that, as the police were placing her under arrest, she looked at

the Hispanic teller who had been serving her, and that the teller announced to

Hagberg that Hagberg “looked like a criminal.” Hagberg’s ordeal ended 20

minutes later, when she was released. The record contains a transcript of

Hagberg’s telephone call to Smith Barney, evidently later the same day, in which

the Smith Barney representative explained that Smith Barney had made a mistake

in informing Cal Fed that the check was not valid. In this telephone call, Hagberg

evidenced distress over her detention.

On September 9, 1999, Hagberg filed a complaint against Cal Fed and 100

unnamed parties as defendants.2 The complaint alleged seven causes of action,

2

The complaint also named Primerica Financial Services as a defendant, but

because of a settlement entered into between the parties, that entity was not a party
to the appeal.

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including race discrimination in violation of the Unruh Civil Rights Act (§§ 51,

52.1), false arrest and false imprisonment, slander, invasion of privacy, intentional

infliction of emotional distress, and negligence. She claimed humiliation and

emotional distress, and sought damages and penalties of $1.6 million for past and

future medical expenses and loss of earnings, as well as attorney fees and costs.

Cal Fed filed its answer on October 15, 1999 and a motion for summary

judgment on July 27, 2000. In support of its motion for summary judgment, Cal

Fed contended that its statements to the police concerning suspected criminal

activity by Hagberg were subject to the absolute privilege established by section

47(b). Cal Fed also claimed immunity under federal law, citing title 31 United

States Code section 5318(g), part of the so-called safe harbor provision of the

Annunzio-Wylie Anti-Money Laundering Act. Cal Fed also claimed that, even if

it were not entitled to immunity for privileged communications under state and

federal law, Hagberg had not presented any facts evidencing conduct in violation

of the Unruh Civil Rights Act. In support of its motion for summary judgment,

Cal Fed proffered Showalter’s declaration, portions of plaintiff’s deposition

testimony, copies of Cal Fed’s interrogatories and plaintiff’s answers to

interrogatories, and the transcript of a recording of the telephone conversation

between Showalter and the police dispatcher, as noted above.

The evidence indicated that although Hagberg believed that the only

explanation for her treatment was racial or ethnic prejudice on the part of bank

employees, the only evidence she possessed in support of this theory was the

circumstance that she was of Hispanic descent and the facts noted above regarding

the treatment she received at the time of the incident. On August 10, 2000,

plaintiff filed her opposition to the motion for summary judgment. In support,

plaintiff presented additional testimony from her deposition, a transcript of a

recordings of telephone calls made during the incident, a photocopy of the

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questioned check, the Showalter declaration, and a copy of Cal Fed’s written loss

prevention procedures. Her deposition testimony indicated her belief that the

teller’s remark that she looked like a criminal could have been motivated only by

racial or ethnic prejudice, and added that the check she proffered would not have

been questioned at her place of business. Her deposition also indicated that one of

the police officers who detained her suggested that she complain about her

treatment. On August 18, 2000, defendant filed its reply.

Plaintiff filed motions for continuance to permit further discovery, but they

were denied. On August 24, 2000, the trial court granted defendant’s motion for

summary judgment. It explained at the hearing on the motion for summary

judgment that the absolute privilege established by section 47(b) applied to Cal

Fed’s statements to the police concerning suspected criminal activity. It declared:

“Although it is subject to abuse, it seems to me the right of a private citizen, or a

public citizen for that matter, to contact the police and advise the police of what

they suspect to be criminal activity must be absolute and must be without threat of

recourse.” The court found support for its conclusion in a decision by this court

(Silberg v. Anderson (1990) 50 Cal.3d 205 (Silberg)) and also in several Court of

Appeal decisions. It noted that there was some disagreement on the point in the

Courts of Appeal, but it followed the majority view, reiterating that “public policy

would dictate that parties must have [unfettered] access to make police reports.”

Because it had decided the case on this basis, it declined to reach Cal Fed’s claim

to immunity under federal law. The court’s judgment briefly reviewed the

evidence, including evidence plaintiff had offered in opposition to the motion for

summary judgment, and stated “[a]fter duly considering the evidence proffered by

Plaintiff, the Court does not find any triable issue of fact.” Furthermore, it

determined: “Defendant’s report to police and communications related thereto are

privileged pursuant to Section 47(b) of the California Civil Code.”

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On appeal, the Court of Appeal affirmed the trial court’s order granting

summary judgment in favor of Cal Fed, agreeing with the lower court that the

privilege established by section 47(b) applied to Cal Fed’s communication with

the police concerning its suspicion that Hagberg was attempting to negotiate a

counterfeit check.

The Court of Appeal, like the trial court, began its analysis with this court’s

decision in Silberg, supra, 50 Cal.3d 205, 215-216. The appellate court pointed

out that in Silberg, we directed that section 47(b) be applied broadly to bar tort

actions based on privileged communications, excepting only the tort of malicious

prosecution.

The Court of Appeal pointed to the many cases emanating from the Courts

of Appeal that hold that the absolute privilege of section 47(b) “shields testimony

or statements to officials conducting criminal investigations.” These cases, it

observed, recognize the importance of ensuring an “open channel of

communication” between citizens and the police. With regard to a single Court of

Appeal decision that reached a contrary result (Fenelon v. Superior Court (1990)

223 Cal.App.3d 1476 (Fenelon)), the Court of Appeal observed that Fenelon “has

not been followed, and has been roundly criticized.” The Court of Appeal adopted

the view embraced by the majority of appellate court decisions on this point. It

observed that under the rule set forth in these decisions, citizens are not entirely

unprotected from abuse, because Penal Code section 148.5, subdivision (a),

provides that it is a misdemeanor knowingly to make a false crime report to the

police.

In response to plaintiff’s claim that statements are not subject to an absolute

privilege when their utterance violates a statute such as the Unruh Civil Rights

Act, the Court of Appeal pointed to other instances in which causes of action

defined by statute — statutes carrying out important public policies — also are

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subject to the privilege established by section 47(b). (Citing, e.g., Rubin v. Green

(1993) 4 Cal.4th 1187, 1203.) Further, the Court of Appeal, like the trial court,

declined to reach defendant’s claim that it (defendant) also was shielded by a

privilege established by federal law. Finally, the Court of Appeal concluded that

the trial court had not abused its discretion in denying plaintiff’s motions for

continuance for further discovery.

We granted Hagberg’s petition for review to resolve an apparent conflict in

the decisions of the Courts of Appeal. Hagberg urges us to adopt the minority

view, pointing out that the ability to summon the police to accuse another of a

crime is a potent weapon that is subject to abuse and that can cause great injury to

reputation and other interests of innocent persons. She also reiterates her claim

that even if the privilege is absolute in most instances when a citizen contacts the

police to report suspected criminal activity, the Unruh Civil Rights Act, with its

important goal of eliminating discrimination on the basis of race and other

classifications, creates an exception when the communication violates the

provisions of that act.

Cal Fed, for its part, first vigorously maintains that it is entitled to absolute

immunity under 31 United States Code section 5318(g)(3), a federal provision that

imposes a duty on banks to report suspected criminal activity of a specified nature

to law enforcement authorities and, specifically preempting state law, provides

absolute immunity for such reports. Cal Fed urges that even if we were to

conclude that state law extends only a qualified privilege with respect to plaintiff’s

claims, state law would be preempted by the more expansive federal immunity

provision.

With respect to section 47(b), Cal Fed urges that this court, like the Court

of Appeal and the trial court in this case, conclude that the better view is expressed

by those Court of Appeal decisions holding that section 47(b) establishes an

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absolute privilege for statements made by a citizen who contacts the police to

report suspected criminal activity. With respect to plaintiff’s Unruh Civil Rights

Act claim, Cal Fed contends that, by its terms, the act does not establish an

exception to section 47(b). Cal Fed also asserts that even the violation of a

constitutional interest sometimes may fail to enjoy a remedy in damages because

of certain immunities and privileges, so that it is not anomalous to extend the

privilege to communications such as those alleged in the present case.

II

Section 47 establishes a privilege that bars liability in tort for the making of

certain statements. Pursuant to section 47(b), the privilege bars a civil action for

damages for communications made “[i]n any (1) legislative proceeding,

(2) judicial proceeding, (3) in any other official proceeding authorized by law, or

(4) in the initiation or course of any other proceeding authorized by law and

reviewable pursuant to [statutes governing writs of mandate],” with certain

statutory exceptions that do not apply to the present case. The privilege

established by this subdivision often is referred to as an “absolute” privilege, and

it bars all tort causes of action except a claim for malicious prosecution. (See

Kimmel v. Goland (1990) 51 Cal.3d 202, 209; Silberg, supra, 50 Cal.3d at p. 216.)

Cal Fed contends that its communications to the police in the present case fall

within the absolute privilege established by section 47(b).

Section 47, subdivision (c) extends a qualified privilege to other

communications. Under section 47, subdivision (c), a qualified privilege, that is a

privilege that applies only to communications made without malice, applies to

“communication[s] . . . to a person interested therein, (1) by one who is also

interested or (2) by one who stands in such a relation to the person interested as to

afford a reasonable ground for supposing the motive for the communication to be

innocent, or (3) who is requested by the person interested to give the information.”

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(§ 47, subd. (c).) Hagberg contends that Cal Fed’s communication to the police at

most fell into this category of qualified privilege, so that she should be entitled to

establish tort liability if she can demonstrate that the communication was made

with malice.

We have explained that the absolute privilege established by section 47(b)

serves the important public policy of assuring free access to the courts and other

official proceedings. It is intended to “ ‘assure utmost freedom of communication

between citizens and public authorities whose responsibility is to investigate and

remedy wrongdoing.’ ” (Silberg, supra, 50 Cal.3d at p. 213, italics added.) We

have explained that both the effective administration of justice and the citizen’s

right of access to the government for redress of grievances would be threatened by

permitting tort liability for communications connected with judicial or other

official proceedings. Hence, without respect to the good faith or malice of the

person who made the statement, or whether the statement ostensibly was made in

the interest of justice, “courts have applied the privilege to eliminate the threat of

liability for communications made during all kinds of truth-seeking proceedings:

judicial, quasi-judicial, legislative and other official proceedings.” (Ibid.)

Although the statute originally was understood as applicable only to the tort

of defamation, our cases, beginning with Albertson v. Raboff (1956) 46 Cal.2d

375, 382, have extended the privilege it provides to other potential tort claims.

(See Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc.

(1986) 42 Cal.3d 1157, 1163-1165.) As noted, the only tort claim we have

identified as falling outside the privilege established by section 47(b) is malicious

prosecution. (Silberg, supra, 50 Cal.3d at p. 216.) Section 47(b), of course, does

not bar a criminal prosecution that is based on a statement or communication,

when the speaker’s utterance encompasses the elements of a criminal offense.

(See, e.g., Pen. Code, §§ 118 [perjury], 148.5 [false report of criminal offense].)

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In its application to communications made in a “judicial proceeding,”

section 47(b) is not limited to statements made in a courtroom. Many cases have

explained that section 47(b) encompasses not only testimony in court and

statements made in pleadings, but also statements made prior to the filing of a

lawsuit, whether in preparation for anticipated litigation or to investigate the

feasibility of filing a lawsuit. (See Rubin v. Green, supra, 4 Cal.4th at pp. 1194-

1195.) As we have said, “it is late in the day to contend that communications with

‘some relation’ to an anticipated lawsuit are not within the privilege.” (Ibid.)

Rather, the privilege applies to “any publication required or permitted by law in

the course of a judicial proceeding to achieve the objects of the litigation, even

though the publication is made outside the courtroom [when] no function of the

court or its officers is involved. ” (Silberg, supra, 50 Cal.3d at p. 212; see also

PG&E v. Bear Stearns (1990) 50 Cal.3d 1118, 1132-1133, 1137 [the privilege

encompasses a private entity’s statements that instigate another person or entity to

undertake litigation].) We have noted the application of the privilege to

communications with “ ‘some relation to a proceeding that is . . . under serious

consideration;’ ” to “ ‘potential court actions;’ ” and to “ ‘preliminary

conversations and interviews related to contemplated action,’ ” and we also have

determined that the privilege applies to communications made, prior to the filing

of a complaint, by a person “meeting and discussing” with potential parties the

“merits of the proposed . . . lawsuit.” (Rubin v. Green, supra, 4 Cal.4th at p. 1194-

1195.)

By the terms of the statute, statements that are made in quasi-judicial

proceedings, or “any other official proceeding authorized by law” (§ 47(b)), are

privileged to the same extent as statements made in the course of a judicial

proceeding. By analogy to cases extending the litigation privilege to statements

made outside the courtroom, many cases have held that the official proceeding

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privilege applies to a communication intended to prompt an administrative agency

charged with enforcing the law to investigate or remedy a wrongdoing. As we

summarized in Slaughter v. Friedman (1982) 32 Cal.3d 149, “the privilege

protect[s] communications to or from governmental officials which may precede

the initiation of formal proceedings.” (Id. at p. 156, italics omitted.)

In Kashian v. Harriman (2002) 98 Cal.App.4th 892, for example, the

privilege for communications made in connection with “any other official

proceeding” was held to apply to a letter urging a division of the Office of the

Attorney General to institute an investigation into the propriety of the tax exempt

status being claimed by a health care provider named by the letter writer. In

addition, the letter urged that the Attorney General investigate the health care

provider for specified alleged unfair business practices; this, too, was found to be

covered by the privilege. (Id. at pp. 926-927.) In another case, the privilege was

found to extend to communications between private parties regarding whether the

parties should urge the Attorney General’s charitable trust division to investigate

the alleged failure of a recording studio to pay royalties that it owed to various

charities. The Court of Appeal in that case concluded that the privilege extended

to communications between private persons “preliminary to the institution of an

official proceeding.” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47

Cal.App.4th 777, 781-783.)

In another example, the court in Wise v. Thrifty Payless, Inc. (2000) 83

Cal.App.4th 1296 concluded that the privilege extended to a man’s allegedly

unfounded and malicious report to the Department of Motor Vehicles that his

estranged wife was unfit to drive because of drug use. The court concluded that

the “privilege is not limited to the courtroom, but encompasses actions by

administrative bodies and quasi-judicial proceedings. [Citation.] The privilege

extends beyond statements made in the proceedings, and includes statements made

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to initiate official action.” (Id. at p. 1303, italics added.) The court in Wise

explained its holding by pointing to the public policy served by section 47(b):

“An absolute privilege exists to protect citizens from the threat of litigation for

communications to government agencies whose function it is to investigate and

remedy wrongdoing. [Citation.] The privilege is based on ‘[t]he importance of

providing to citizens free and open access to governmental agencies for the

reporting of suspected illegal activity.’ [Citation.]” (Wise v. Thrifty Payless, Inc.,

supra, 83 Cal.App.4th at p. 1303.)

In King v. Borges (1972) 28 Cal.App.3d 27, the court held that the privilege

extended to a letter written by a lawyer to the state’s Division of Real Estate

complaining that a real estate agent improperly had refused to pay a refund out of

an escrow fund to the lawyer’s client. The court observed that the communication

was intended to prompt official action by the Division of Real Estate, and was as

much a part of that agency’s proceedings as a communication made after the

agency took official action. The court warned that effective law enforcement

would suffer if citizens became reluctant to call upon the government to enforce

the law for fear of potential tort liability. In the court’s view, the risk of this

public harm outweighed the potential for occasional harm to a private interest that

would follow from the application of the privilege to such communications. (Id. at

pp. 31-34.)

Another case applied the privilege in the context of a whistleblower statute

that encourages citizens to report waste and malfeasance on the part of

governmental authorities. (Gov. Code, § 8547.1.) As the court in Braun v.

Bureau of State Audits (1998) 67 Cal.App.4th 1382, explained, the State Auditor

is charged with investigating citizen complaints concerning improper

governmental activity and thereafter reporting any improper activity to appropriate

enforcement agencies. (Gov. Code, §§ 8547.5, 8547.7.) The Court of Appeal

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concluded that the Bureau of State Audits’ investigation and its report to an

enforcement agency constituted an “official proceeding” and were subject to the

absolute privilege — just as initial complaints made by whistleblowers to the State

Auditor necessarily would be privileged. (Braun v. Bureau of State Audits, supra,

67 Cal.App.4th at pp. 1389-1391.)

Numerous additional cases agree that the section 47(b) privilege applies to

complaints to governmental agencies requesting that the agency investigate or

remedy wrongdoing. (See Fremont Comp. Ins. Co. v. Superior Court (1996) 44

Cal.App.4th 867, 876-877 [privilege applied to a statement by two worker

compensation insurers to the state Department of Insurance and the local district

attorney’s office accusing a physician of insurance fraud]; Passman v. Torkan

(1995) 34 Cal.App.4th 607, 616-619 [privilege applied to a letter written to the

local district attorney’s office intended to prompt a criminal prosecution]; Long v.

Pinto (1981) 126 Cal.App.3d 946, 948 [privilege applied to a physician’s letter to

the state Board of Medical Quality Assurance accusing another physician of

performing unnecessary surgeries, because the letter “was sent to prompt board

action and was thus part of an official proceeding”]; Tiedemann v. Superior Court

(1978) 83 Cal.App.3d 918, 924-926 [privilege applied to communication by a

“disgruntled former business associate” to the federal Internal Revenue Service

accusing a person of tax fraud]; Martin v. Kearney (1975) 51 Cal.App.3d 309, 311

[“official proceeding” privilege extends to parents’ letters to a school principal

seeking to prompt official action concerning a teacher’s poor performance].)

By the same token, the overwhelming majority of cases conclude that when

a citizen contacts law enforcement personnel to report suspected criminal activity

and to instigate law enforcement personnel to respond, the communication also

enjoys an unqualified privilege under section 47(b). These cases explain that a

statement urging law enforcement personnel to investigate another person’s

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suspected violation of criminal law, to apprehend a suspected lawbreaker, or to

report a crime to prosecutorial authorities is shielded from tort liability to the same

extent as a similar statement to administrative enforcement agencies. Reasoning

that such communications are at least preparatory to “any other official proceeding

authorized by law,” (ibid.) the majority of decisions in the Courts of Appeal have

held such statements to be shielded by an absolute privilege. We find these

decisions to be persuasive, as we shall explain.

As the Court of Appeal in the present case observed, the leading case in this

area is Williams v. Taylor (1982) 129 Cal.App.3d 745 (Williams). In that case, the

Court of Appeal applied the absolute privilege of section 47(b) to statements made

by an employer who contacted the police to report suspected theft on the part of an

employee and to request that the police conduct an investigation. As a result of

the police investigation, the employee was charged with various crimes. Most of

the charges ultimately were dismissed, and the employee was acquitted of the

remaining charge that went to trial. Thereafter, the employee sued the employer

for slander, intentional and negligent infliction of emotional distress, and

malicious prosecution.

The Court of Appeal in Williams determined that the employee’s slander

and emotional distress claims failed because the statements to the police were

subject to the section 47(b) privilege: “In our view,” the appellate court stated, “a

communication concerning possible wrongdoing, made to an official

governmental agency such as a local police department, and which communication

is designed to prompt action by that entity, is as much a part of an ‘official

proceeding’ as a communication made after an official investigation has

commenced. [Citation.] After all, ‘[t]he policy underlying the privilege is to

assure utmost freedom of communication between citizens and public authorities

whose responsibility it is to investigate and remedy wrongdoing.’ [Citation.] In

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order for such investigation to be effective, ‘there must be an open channel of

communication by which citizens can call . . . attention to suspected wrongdoing.

That channel would quickly close if its use subjected the user to a risk of liability

for libel. A qualified privilege is inadequate under the circumstances. . . . [¶] The

importance of providing to citizens free and open access to governmental agencies

for the reporting of suspected illegal activity outweighs the occasional harm that

might befall a defamed individual. Thus the absolute privilege is essential.’

[Citation] And, since the privilege provided by section 47 [(b)] is absolute, it

cannot be defeated by a showing of malice.” (Williams, supra, 129 Cal.App.3d at

pp. 753-754.)

We cited Williams with approval in Slaughter v. Friedman, supra, 32

Cal.3d 149. In that case we determined that the privilege did not apply to

communications between a dental insurance plan and a dentist’s patients, in which

the insurance plan denied claims for assertedly unnecessary work and informed

the patients that the insurance company intended to report the dentist to a state

dental professional association for possible discipline. These were

communications between private parties, they concerned the processing of

insurance claims by a private entity, and they were not directed at preparing for or

eliciting governmental action. We distinguished these circumstances from those

in which the privilege does apply, stating that: “The ‘official proceeding’

privilege has been interpreted broadly to protect communication to or from

governmental officials which may precede the initiation of formal proceedings.

(Williams v. Taylor (1982) 129 Cal.App.3d 745, 753 [statements to investigative

officers]; Brody v. Montalbano (1978) 87 Cal.App.3d 725, 732-733

[communications between parents and school board]; Tiedemann v. Superior

Court (1978) 83 Cal.App.3d 918, 924-926 [statements to I.R.S. agents

investigating tax fraud].)” (Slaughter v. Friedman, supra, 32 Cal.3d at p. 156.)

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Many other decisions are in accord with Williams, supra, 129 Cal.App.3d

745. In Beroiz v. Wahl (2000) 84 Cal.App.4th 485, for example, the court relied

upon Williams in determining that the privilege barred a defamation claim based

upon an American citizen’s communication to Mexican prosecutors seeking the

initiation of a criminal investigation by Mexican authorities. The court declared,

citing cases dating back to the 1930’s, that “[g]enerally, the absolute privilege

shields . . . statements to officials conducting criminal investigations.” (Beroiz v.

Wahl, supra, 84 Cal.App.4th at pp. 494-495.) In Cabesuela v. Browning-Ferris

Industries of California, Inc. (1998) 68 Cal.App.4th 101, 112, the court held that

the absolute privilege extended to an employee’s statement to the police that a

coworker had threatened the employee with violence. A defamation claim was

barred, the court observed, because “Civil Code section 47 gives all persons the

right to report crimes to the police, the local prosecutor or an appropriate

regulatory agency, even if the report is made in bad faith.” (Ibid.)

In Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498, 1502-

1504, in the context of false imprisonment and assault and battery claims, the

court found the privilege applicable to a hotel manager’s report to the police that a

guest had been brandishing a gun in a hotel room. In Cote v. Henderson (1990)

218 Cal.App.3d 796, 806, the court determined that the privilege extended to a

report made by a woman to the police and the district attorney that a man had

raped her. And in Johnson v. Symantec Corp. (N.D.Cal. 1999) 58 F.Supp.2d 1107

(Johnson), the court applied the privilege to bar a defamation action against a man

who reported to the police that a coworker had assaulted him. Applying

California law, the federal district court opined that this court would agree with

the court in Williams, supra, 129 Cal.App.3d 745, that the privilege applied not

only to communications made during pending official proceedings, but also to

“preinvestigation communications intended to trigger official action.” (Johnson,

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supra, 58 F.Supp.2d at p. 1110.) The district court pointed to the many lower

court cases in accord with Williams, to our statement in Slaughter v. Friedman,

supra, 32 Cal.3d 149, that the official proceeding privilege should be interpreted

broadly, and also to our approving citation to Williams, supra, 129 Cal.App.3d

745, in the Slaughter case. (Johnson, supra, 58 F.Supp.2d at pp. 1109-1110, &

fn. 3; see also Forro Precision, Inc. v. International Business Machines (9th Cir.

1982) 673 F.2d 1045, 1055 [applying the absolute privilege of section 47(b) to

communications by an alleged crime victim to the local police].)

One Court of Appeal decision disagreed with these authorities, but its

analysis has been rejected in numerous subsequent decisions. In Fenelon, supra,

223 Cal.App.3d 1476, a majority of the court determined that a citizen’s statement

to the police concerning the suspected criminal activity of another person did not

concern an “official proceeding.” The majority declared that the term “official

proceeding” encompasses solely “proceedings ‘which [resemble] judicial and

legislative proceedings, such as transactions of administrative boards and quasi-

judicial and quasi-legislative proceedings . . . .’ [Citation.] ” (Id. at p. 1480.) The

primary reason advanced for this conclusion was that it is only in such

proceedings that persons accused of wrongdoing possess a certain minimum level

of due process protection. (Id. at p. 1483.) An administrative proceeding may

qualify under section 47(b), the majority stated, when the body possesses

factfinding authority and conducts hearings and renders adjudicative judgments

based on the application of law to the facts. “In general,” the Fenelon majority

stated, “the absolute privilege under section 47[b] is available only where there is

an express statutory authorization for the administrative agency to exercise quasi-

judicial power.” (Fenelon, at p. 1481.) Citing out-of-state authority, the Fenelon

majority declared that it was better policy to accord only a qualified privilege to

communications to the police that are intended to instigate official action by law

17

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enforcement. It quoted a 1978 New York case approvingly: “ ‘To clothe with

absolute immunity communications made to a body acting in other than a quasi-

judicial capacity — communications which because of the absence of a hearing

may often go unheard of, let alone challenged, by their subject — would provide

an unchecked vehicle for silent but effective character assassination

. . . .’ [Citation.]” (Id. at p. 1483.)

The Fenelon majority cited a number of California cases in support of its

assertion that the unqualified privilege applies solely to statements made in official

proceedings in which an administrative or legislative body possesses quasi-judicial

power vested in it by statute. The cases cited, however, do not support the

proposition that the privilege applies solely when a communication is made during

a hearing at which the accused person possesses procedural protections, nor do

these cases suggest that a communication intended to prompt an administrative

agency to investigate wrongdoing would not be privileged. (See Chen v. Fleming

(1983) 147 Cal.App.3d 36 [privilege applied to a complaint to the State Bar

concerning an attorney]; Imig v. Ferrar (1977) 70 Cal.App.3d 48 [privilege

applied to a citizen’s communication seeking an internal affairs investigation of a

police officer’s alleged misconduct]; Martin v. Kearney, supra, 51 Cal.App.3d 309

[privilege applied to parents’ complaints to a public school principal about a

teacher]; King v. Borges, supra, 28 Cal.App.3d 27 [privilege applied to a

complaint to the state Division of Real Estate accusing a real estate broker of

dishonesty].)

The cases cited do not suggest that, to be privileged, the communication

must have been made at the time of a quasi-judicial hearing at which the accused

person had an opportunity to be heard. Indeed, they conclude otherwise. In

King v. Borges, supra, 28 Cal.App.3d 27, for example, the court acknowledged

that a request that an agency conduct an investigation into wrongdoing is not a

18

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part of the formal pleadings in an administrative action. It pointed out, however,

that the privilege that is applicable to “judicial proceedings” is not limited to

formal pleadings or statements made in open court. To ensure open channels of

communication to governmental agencies, the court applied a similarly broad

reading to the “official proceeding” privilege, concluding that it encompassed “a

communication to an official administrative agency . . . designed to prompt action

by that agency .” (Id. at pp. 32-34.) In sum, the cases cited by the Fenelon court

applied the privilege to communications requesting agency investigation of

possible wrongdoing — an investigation that, like a police investigation, might

never result in any further official action at all or that, like a police investigation,

might result in a decision to charge the accused person with some kind of

wrongdoing.3

We are not persuaded by the majority’s analysis in Fenelon, supra, 223

Cal.App.3d 1476. As Justice Benke pointed out in her dissent in Fenelon, prior

case law establishes that the critical question is the aim of the communication, not

the forum in which it takes place. If the communication is made “in anticipation

of or [is] designed to prompt official proceedings, the communication is

protected.” (Id. at p. 1485 (dis. opn. of Benke, J.).) Further, as Justice Benke

explained, the narrow approach taken by the Fenelon majority to what constitutes


3

As one court explained, with reference to the many sister state decisions

cited by the Fenelon majority, “eighteen of the nineteen cases merely apply the
common law privilege for good faith communication between interested parties
. . . or similar case law precedent. While the nineteenth case, [citation], did
involve the application of a statutorily created privilege, the possibility of an
absolute privilege did not arise because the statute at issue explicitly applied only
to communications made in ‘good faith.’ [Citations.] [¶] In none of the nineteen
cases was the scope of a statutory privilege for ‘official proceeding[s]’ discussed.”
(Johnson, supra, 58 F.Supp.2d at p. 1112.)

19

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an “official proceeding” is contrary to settled authority. (Id. at pp. 1485-1486.)

The Fenelon majority’s analysis certainly depended upon a much narrower view

of the scope and duration of the privilege in judicial proceedings than we have

adopted in recent years. It is well settled that communications may be privileged

even when they occur outside any hearing or proceeding at which procedural

protections apply. In other words, the judicial proceeding privilege may apply to

statements made “outside the courtroom [when] no function of the court or its

officers is involved.” (Silberg, supra, 50 Cal.3d at p. 212; see also Rubin v.

Green, supra, 4 Cal.4th at pp. 1194-1195; PG&E v. Bear Stearns, supra, 50

Cal.3d at pp. 1132-1133, 1137; Slaughter v. Friedman, supra, 32 Cal.3d at

p. 156.)

Although the Fenelon majority pointed to the procedural protections that

apply in judicial proceedings or in quasi-judicial administrative enforcement

proceedings, it did not explain the many decisions that extend the privilege to

communications requesting the initiation of investigation that might lead to such

proceedings. As these decisions recognize, statements made in preparation for or

to prompt investigation that may result in the initiation of such proceedings fall

within the privilege. It is not required that the statement be made during the

proceeding itself. A statement to the police that is designed to prompt

investigation of crime is not different, in this respect, from statements designed to

prompt investigation into the tax exempt status of a hospital, the failure of an

entity to honor a contractual obligation to a charitable trust, the failure of a real

estate broker to release funds from escrow, the complaint of a physician that

another physician performed unnecessary surgery, or the many other examples

noted above of complaints intended to elicit administrative action. Although the

administrative action itself, like a criminal trial should one ensue, offers

procedural protections to the accused person, there is no basis for concluding that

20

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similar protections must be in place at the moment an accusation or complaint is

made in order for the privilege to apply.

As for the Fenelon majority’s reliance upon the procedural protections

offered once quasi-judicial administrative proceedings commence, as explained by

the federal district court in Johnson, supra, 58 F.Supp.2d 1107, when it rejected

the Fenelon majority’s analysis, “[t]he relevant forum . . . for determining the truth

of a police report is a criminal trial, whose safeguards go beyond those employed

in any quasi-judicial proceeding.” (Id. at p. 1113.) Finally, the evident fear of the

Fenelon majority that citizens commonly may manipulate law enforcement

personnel and use them as tools in private vendettas seems overstated and exhibits

an unwarranted assumption of gullibility on the part of law enforcement personnel

and a misplaced lack of confidence in the constitutional and legal process that

constrains their exercise of authority.

As noted, subsequent decisions have declined to follow the majority’s

conclusion in Fenelon, supra, 223 Cal.App.3d 1476. (See Beroiz v. Wahl, supra,

84 Cal.App.4th at pp. 495-496; Braun v. Chronicle Publishing Co., supra, 52

Cal.App.4th at pp. 1051-1052; Fremont Comp. Ins. Co. v. Superior Court, supra,

44 Cal.App.4th at p. 876; Passman v. Torkan, supra, 34 Cal.App.4th at pp. 618-

619; Hunsucker v. Sunnyvale Hilton Inn, supra, 23 Cal.App.4th at pp. 1502-1504;

Johnson, supra, 58 F.Supp.2d at pp. 1111-1112.)4

4

One decision demonstrates confusion concerning the nature of the

disagreement between Williams, supra, 129 Cal.App.3d 745, and Fenelon, supra,
223 Cal.App.3d 1476, concluding that Williams was correct in concluding that a
report to the police is privileged under section 47(b) and that Fenelon erred in
concluding otherwise — but that the privilege nonetheless should be a qualified
one. (Devis v. Bank of America (1998) 65 Cal.App.4th 1002, 1007-1008.) The
court in Devis relied upon early cases concerning claims of false imprisonment,
decisions that we discuss below. (Post, at pp. 25-29.)

21

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In the years following the decision in Williams, supra, 129 Cal.App.3d 745,

and the developing weight of authority adhering to its holding and applying the

section 47(b) privilege to various communications intended to instigate official

investigation into wrongdoing, the Legislature has amended section 47(b) without

indicating disapproval of those cases. (See Moore v. Conliffe (1994) 7 Cal.4th

634, 648 [relying upon legislative acquiescence with respect to a claim concerning

the application of the section 47(b) privilege to arbitration proceedings].)5

Furthermore, support for our conclusion that communications are

privileged under section 47(b) when they are intended to instigate official

governmental investigation into wrongdoing, including police investigation, also

can be found in a statute that establishes an exception that would be unnecessary

under the interpretation offered by plaintiff and the Fenelon majority. Section

47.5, enacted the same year that Williams, supra, 129 Cal.App.3d 745, was

decided, creates a limited exception to section 47(b) that authorizes a defamation

action in certain restricted circumstances. It provides that “[n]otwithstanding

section 47, a peace officer may bring an action for defamation against an

individual who has filed a complaint with that officer’s employing agency alleging

misconduct, criminal conduct, or incompetence, if that complaint is false, the

complaint was made with knowledge that it was false and that it was made with


5

The dissent contends that we “rel[y] on the ‘slim reed’ of legislative

inaction” and “virtually ignore[] . . . [our] obligation to interpret the statute.” (Dis.
opn., post at p. 3.) Our interpretation of section 47(b), however, relies upon our
own broad interpretation of the statute in Silberg, supra, 50 Cal.3d 205 and later
cases, upon the many decisions that have applied the statutory privilege to
communications to governmental agencies requesting that the agency investigate
or remedy wrongdoing, and upon the specific application of section 47(b) to
communications with the police discussed in Williams, supra, 129 Cal.App.3d 745
and later cases.

22

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spite, hatred, or ill will.” (§ 47.5) Although courts have debated constitutional

issues presented by section 47.5 (see People v. Stanistreet (2002) 29 Cal.4th 497,

512 [noting constitutional debate but declining to resolve it]), they have agreed

that the statute constitutes an exception to the general rule that “[a]

communication to an official agency which is designed to prompt action is

considered a part of an official proceeding for purposes of Civil Code section 47.”

(Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1439-1440; see also Loshonkohl

v. Kinder (2003) 109 Cal.App.4th 510, 514.) Because it is understood that the

privilege established by section 47(b) should be given an expansive reach, section

47.5 has been construed narrowly. Actions other than for defamation (and the

previously excepted action for malicious prosecution), even if they are based upon

knowingly false complaints against a peace officer, do not fall within this

exception. (Shaddox v. Bertani (2003) 110 Cal.App.4th 1406, 1415, & fn. 12.)

Section 47.5 unquestionably supports the conclusion that the privilege established

by section 47(b) applies, in general, to a “communication to an official agency

which is designed to prompt action” (Walker v. Kiousis, supra, 93 Cal.App.4th at

pp. 1439-1440), including a communication to the police that is intended to trigger

an investigation into possible criminal activity.6


6

Cal Fed asserts that support for its position can be found in the Child Abuse

and Neglect Reporting Act (Pen. Code, § 11164, et seq.), which requires certain
persons (and permits other persons) to report to governmental authorities
suspected instance of child abuse and specifically establishes that permissive
reporters may be held liable for willfully false reports, but that mandatory
reporters are shielded by absolute immunity. (Pen. Code, § 11172, subd. (a).)
Cal Fed contends that it would have been an idle act for the Legislature to
establish a qualified immunity for permissive reporters, as it did in Penal Code
section 11172, subdivision (a), if Hagberg were correct that section 47 itself
establishes at most a qualified immunity for citizen reports of criminal activity.
(Accord, Johnson, supra, 58 F.Supp.2d at p. 1111.) In response, it has been

(Footnote continued on next page.)

23

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(Footnote continued from previous page.)

objected that the absolute privilege for mandatory reporters that the Legislature
established in Penal Code section 11172, subdivision (a) would have been
unnecessary if Cal Fed were correct that section 47(b) establishes an absolute
privilege for citizen reports to the police concerning criminal activity. As
evidence that our interpretation of section 47(b) does not comport with legislative
intent, the dissent also refers to a similar statutory scheme that imposes new duties
on certain persons to report instances of “physical abuse, abandonment, isolation,
financial abuse, or neglect” of an elder or dependent adult (Welf. & Inst. Code,
§ 15630, subd. (b)) to specified state or local agencies or to law enforcement. The
dissent indicates that the qualified privilege for permissive reporters established by
these provisions demonstrates legislative distaste for false reports to the police
concerning criminal activity, as well as the Legislature’s general conclusion that
“reports to police must be made in good faith in order to receive immunity.” (Dis.
opn., post at p. 4.) The dissent adds that there would have been no need to provide
absolute immunity for mandated reporters under these statutory schemes if the
Legislature intended section 47(b) to be interpreted as the Williams decision
concluded it should be. The dissent also suggests that, if these provisions
constituted an exception to a general rule of privilege, the Legislature would have
located them in section 47(b) itself, along with the other enumerated exceptions
that appear there.


There is evidence that in enacting the child abuse reporting provisions, the

Legislature understood that the general rule was that reports to the police
concerning criminal activity were privileged. As noted by Cal Fed and the court
in Johnson, supra, 58 F.Supp.2d at pages 1110-1111, it would have been
unnecessary to provide for qualified immunity for permissive reporters if the
dissent’s interpretation of section 47(b) were the correct one. Further, in 1981,
while the Legislature was considering a related measure that added section 48.7 to
the Civil Code, the Legislative Counsel’s digest to the bill explained that under
existing law, a person who is criminally charged with child abuse may bring a
civil action for libel or slander against “the minor, a parent or guardian of the
minor, or a witness” except that “there is no liability for libel or slander based on a
privileged communication, including a communication intended to initiate or
further an official proceeding such as a criminal prosecution.” (Legis. Counsel’s
Dig., Assem. Bill No. 42 (1981-1982 Reg. Sess.) 4 Stats. 1981, Summary Dig.,
pp. 73-74, italics added.)


On balance, however, it would be a mistake to rely too heavily on Penal

Code section 11172 in resolving the more general issue of the meaning and proper
application of section 47(b). Penal Code section 11172 was part of a

(Footnote continued on next page.)

24

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It has been urged that the enactment of Penal Code section 148.5, imposing

a criminal penalty upon any person who knowingly gives a false report of a crime

to any law enforcement officer or district attorney, indicates the Legislature’s


(Footnote continued from previous page.)

comprehensive scheme in which the Legislature sought to increase substantially
the reporting of a specific type of crime, but at the same time to provide potential
subjects of such increased reporting with explicit civil protection against malicious
false reports. (See Stecks v. Young (1995) 38 Cal.App.4th 365, 371; Storch v.
Silverman (1986) 186 Cal.App.3d 671, 678-680 [describing the Legislature’s
attempt to increase reporting by immunizing mandated reporters, but at the same
time to prevent a vindictive spouse or neighbor from making a knowingly false
report by limiting immunity for permissive reporters].) Such an exceptional and
comprehensive scheme, in which the Legislature has balanced conflicting
interests, does not reflect an attempt by the Legislature to deal generally with the
subject of the potential civil liability, if any, faced by persons who report crime to
the police. It is evident that the same conclusion applies to the comprehensive
scheme for elder abuse reporting that is noted by the dissent.


The dissent also refers to Education Code section 48902, part of a chapter

of the Education Code regulating pupil rights and responsibilities and, specifically,
part of an article of that code regulating suspension and expulsion procedures.
The provision in question requires school principals and their designees to report
specified criminal activity on the part of students to law enforcement authorities in
connection with ordering the suspension or expulsion of a student for such
activity, and it supplies qualified civil and criminal immunity for doing so. The
report required by this statute is to be made by a supervisory public employee 
as an incident of the employee’s official duty to discipline students. The principal
who is required to report is not thereby seeking police intervention; indeed, it
appears that in most instances the report to law enforcement will occur only
subsequent to the decision to suspend or expel  a decision that is the product of
a formal or informal due process hearing. Thus, the school principal’s situation is
quite distinct from that facing a person who seeks to prompt police intervention or
assistance, and this statute does not supply any indication of legislative intent with
respect to the application of section 47(b). Again, if the dissent were correct that
section 47 supplies only a qualified privilege for reports of criminal activity, it is
difficult to understand why the Legislature found it necessary to provide for a
qualified privilege under Education Code section 48902.

25

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belief that false reports to the police should not be protected by an absolute

privilege. In past cases in which we recognized an absolute privilege under

section 47(b), however, we have relied upon similar criminal sanctions in support

of our expansive view of the privilege in civil actions. In Silberg, supra, 50

Cal.3d 205, for example, we pointed out that although the absolute privilege

almost entirely removes civil litigation as a deterrent against false or malicious

communications, “in a good many cases of injurious communications, other

remedies aside from a derivative suit for compensation will exist and may help

deter injurious publication during litigation. Examples of these remedies include

criminal prosecution for perjury . . . or subornation of perjury . . . .” (Id. at

pp. 218-219.)

Concern that Penal Code section 148.5 provides an inadequate bulwark

against false and malicious communications to the police seems overstated. We

note the absence of any indication that such malicious communications present a

widespread problem. As prior cases have stressed in interpreting section 47(b),

the broad application of the privilege serves the important public interest of

securing open channels of communication between citizens and law enforcement

personnel and other public officials charged with investigating and remedying

wrongdoing.

In support of her claim that Cal Fed’s communication with the police in the

present case was not subject to the absolute privilege of section 47(b), plaintiff

directs our attention to early cases discussing the tort of false imprisonment.

That tort and the crime of false imprisonment are defined in the same way.

(Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.)7 We have explained that

7

False imprisonment consists of the unlawful violation of the personal

liberty of another person; a false arrest is merely one way in which a false

(Footnote continued on next page.)

26

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“ ‘[t]he tort of false imprisonment is the nonconsensual, intentional confinement of

a person, without lawful privilege, for an appreciable length of time . . . .’

[Citation.] A person is falsely imprisoned ‘if he is wrongfully deprived of his

freedom to leave a particular place by the conduct of another.’ ” (Molko v. Holy

Spirit Assn. (1988) 46 Cal.3d 1092, 1123.)

In support of her claim that a knowingly false or malicious report to the

police accusing another person of criminal activity may give rise to civil liability,

plaintiff relies on Miller v. Fano (1901) 134 Cal. 103 (Miller). In that case,

defendant Place, a San Diego police officer, received a telegram from a Los

Angeles police officer directing him to arrest one Frank Kuhn, and directing him

to consult defendant Fano for further information. Fano was a man who traded in

railroad tickets. After learning that a ticket he had bought from Kuhn was forged,

Fano tentatively identified Miller to Place, the police officer, as the man who had

sold him the questioned ticket. Place arrested Miller without a warrant, believing

him to be Kuhn. Miller later was released and secured a judgment against Place

and Fano.

In our decision in Miller, supra, 134 Cal. 103, we upheld a false

imprisonment verdict against Place, the police officer, concluding that he had

acted “with gross carelessness” because he failed to investigate Miller’s

protestations that he was not Kuhn. (Id. at p. 108.)

As for Fano’s liability, we acknowledged in Miller, supra, 134 Cal. 103,

that a person may be liable for false imprisonment even if he or she did not


(Footnote continued from previous page.)

imprisonment may be accomplished — the two are not separate torts. (5 Witkin,
Summary of Cal. Law (9th ed.1988) Torts, § 378, pp. 463-464.)

27

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personally confine the plaintiff, but rather aided and abetted in an unlawful arrest

by encouraging, directing, or assisting a police officer to make the unlawful arrest.

We went on to conclude that Fano had not encouraged or directed the concededly

unlawful arrest of Miller, observing that it was the duty of every citizen to

cooperate with the police in their investigation of crime and to provide

information to investigating officers. Fano merely fulfilled this duty. In language

relied upon by plaintiff in the present case, we suggested that a person would aid

and abet an unlawful arrest if he or she should “willfully identify the wrong man

as being the criminal, for the purpose of having him arrested and prosecuted . . .”

(id. at p. 107), but we denied that an “honest mistake” such as appeared in the case

before us could be the basis for a defendant’s liability as an instigator or aider and

abettor of a false imprisonment. (Ibid.) Rather, when a person merely conveys

information to the police “ ‘leaving it with the constable to act or not, as he

thought proper . . . then the defendant will not be liable . . . .’ ” (Ibid.)

Plaintiff also refers us to Turner v. Mellon (1953) 41 Cal.2d 45 (Turner).

In Turner, again the question was whether the defendant was liable as one who

had assisted in bringing about a police officer’s unjustified arrest. Mellon, a

Western Union employee, had been robbed several times at his place of

employment. He observed plaintiff Turner behaving suspiciously outside his

office, telephoned the police, and stated his suspicion that Turner was the robber.

Mellon tentatively identified Turner as such to the police. Turner was arrested,

but soon was released. We noted that an individual is not liable for false

imprisonment unless he or she has “ ‘taken some active part in bringing about the

unlawful arrest’ ” by the police. There is no liability if, “ ‘acting in good faith,’ ”

he or she simply furnishes information leading to an arrest. (Id. at p. 48.)

Although not confronted with a case in which bad faith was alleged, we pointed

out how unjust and injurious to the public interest it would be to impose liability

28

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for honest mistakes. We concluded that the defendant, though he had given

mistaken information leading to the arrest, had not taken an “ ‘active part in

bringing about the unlawful arrest.’ ” (Ibid.) Defendant’s conduct “as a matter of

law, did not amount to participation in the arrest.” (Id. at p. 49.)

These cases, however, did not mention, much less analyze, the privilege

established by section 47(b). They explored the limits of the common law tort of

false imprisonment and the potential for liability as an aider and abettor of an

unlawful arrest by police officers. The cases did not consider the issue in the

context of a proceeding in which bad faith actually was alleged. The cases also

did not distinguish between malicious conduct of a citizen that aided or promoted

a peace officer’s unlawful arrest, which might support liability, and pure

communication, which would be protected by the statutory privilege. (See

Kimmel v. Goland, supra, 51 Cal.3d at p. 211 [distinguishing injury from

“noncommunicative conduct” from injury arising from “communicative acts”].)

They did not consider whether a cause of action for false imprisonment based

upon pure communication should be permitted even though a claim for

defamation or any other tort save malicious prosecution would be prohibited by

section 47(b). As we often have stated, cases are not authority for propositions not

considered. (Amwest Surety Ins. Co. v. Wilson (1995) 11 Cal.4th 1243, 1268.)

Moreover, the cases predated the expansion of the privilege that began with

Albertson v. Raboff, supra, 46 Cal.2d 375, and that led to the broad interpretation

established in Silberg, supra, 50 Cal.3d 205, and other cases. The early cases

upon which plaintiff relies were decided before this court explored the broad reach

of the privilege established by section 47(b) and explained that it applies not only

to defamation, as earlier had been understood, but to all tort actions that seek to

impose liability based upon a covered communication, with the exception of

malicious prosecution. As we have cautioned, the privilege cannot be defeated by

29

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providing a new label for the alleged wrong. (Rubin v. Green, supra, 4 Cal.4th at

p. 1203.)

As discussed above, in Silberg, supra, 50 Cal.3d 205, and later cases we

explained that section 47(b) operates to bar civil liability for any tort claim based

upon a privileged communication, with the exception of malicious prosecution,

whose requirements include malice, lack of probable cause, and termination in the

plaintiff’s favor. (Silberg, supra, 50 Cal.3d at pp. 215-216; see also Rubin v.

Green, supra, 4 Cal.4th at p. 1194; Kimmel v. Goland, supra, 51 Cal.3d at p. 209.)

As we explained, “[m]alicious prosecution actions are permitted because ‘[t]he

policy of encouraging free access to the courts . . . is outweighed by the policy of

affording redress for individual wrongs when the requirements of favorable

termination, lack of probable cause, and malice are satisfied.’ ” (Silberg, supra,

50 Cal.3d at p. 216.) Under plaintiff’s theory, however, we would be forced to

abandon this well-settled rule and add the tort of false imprisonment as a further

exception, even though proof of a termination in plaintiff’s favor would not be

required. Plaintiff has not supplied an adequate justification for taking this step.

For all these reasons, the cases relied upon by plaintiff do not constitute

authority for the proposition that, under the contemporary interpretation of section

47(b), an absolute privilege does not exist, shielding a citizen’s report to the police

concerning suspected criminal activity of another person. (Accord, Beroiz v.

Wahl, supra, 84 Cal.App.4th at pp. 495-496, fn. 6.)

Plaintiff also points to the decision of the Court of Appeal in DuLac v.

Perma Trans Products, Inc. (1980) 103 Cal.App.3d 937, 941. In that case the

Court of Appeal, reviewing the case on demurrer, determined that the plaintiff had

failed to adequately allege a cause of action for false imprisonment but, relying on

the early cases noted above, the court stated that providing false information to the

police in bad faith in order to procure an arrest could form the basis for liability for

30

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false imprisonment. This decision is based on our early cases, does not discuss

section 47(b), and does not consider how its conclusion possibly could be

reconciled with our current view of the broad scope of the privilege established by

that statute. (Accord, Beroiz v. Wahl, supra, 84 Cal.App.4th at pp. 495-496,

fn. 6.)8

Plaintiff next contends that even if we conclude that section 47(b) generally

provides an absolute privilege, section 47(b) should not be interpreted to bar

liability when it is alleged that a business establishment’s communication to the

police concerning suspected criminal behavior was motivated by racial or ethnic

prejudice and therefore constituted unlawful discrimination by the business

establishment in violation of the Unruh Civil Rights Act (§ 51 et seq.), an

enactment that provides for equal “accommodations, advantages, facilities,

privileges, or services in all business establishments” without regard to

characteristics such as race, ancestry, or place of national origin. (§ 51, subd. (b).)

Although plaintiff alleged in her complaint that Cal Fed had denied her services on

the basis of her race or ethnicity and that the branch where she presented the check

had an informal policy of singling out persons of certain racial or ethnic

backgrounds as “inherently suspicious,” plaintiff’s deposition testimony, which

was introduced in connection with the summary judgment motion, demonstrates

that plaintiff’s claim primarily was based on inferences plaintiff subjectively drew

from her experience on the day she was detained, inferences that appear to have

been refuted by the specific evidence Cal Fed presented with regard to its

employee’s telephone conversations with Smith Barney and the police, and Cal

8

To the extent that language in Miller, supra, 134 Cal. 103, Turner, supra,

41 Cal.2d 46, and DuLac v. Perma Trans Products, Inc., supra, 103 Cal.App.3d
937, is inconsistent with our opinion in the present case, it is disapproved.

31

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Fed’s prompt efforts to end the police intervention once the mistake had been

identified. Because our review of the record raises a serious question whether the

evidence presented in support of and in opposition to the summary judgment

motion was sufficient even to raise a triable issue of fact on the question whether

Cal Fed or its employees were motivated by racial or ethnic prejudice in their

treatment of plaintiff or followed a policy of singling out persons of certain races

or ethnic backgrounds for discriminatory treatment, we have concluded that this is

not an appropriate case in which to resolve the broad legal question whether proof

that a business establishment has called for police assistance (or has a policy of

calling for police assistance) based on racial or ethnic prejudice could give rise to

liability under the Unruh Civil Rights Act notwithstanding the provisions of

section 47(b). (See Cal. Rules of Court, rule 29(b)(3) [on review, this court “need

not decide every issue the parties raise or the court specifies”].)

Because we conclude that judgment correctly was entered in Cal Fed’s

favor on the basis of the privilege provided by section 47(b), we need not reach

Cal Fed’s assertion that it is shielded under the immunity established by federal

banking law. (See 31 U.S.C. § 5318(g).)

III

For the foregoing reasons, the judgment of the Court of Appeal is affirmed.

GEORGE, C.J.

WE CONCUR:

KENNARD, J.
CHIN, J.
MORENO, J.



32

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DISSENTING OPINION BY BROWN, J.




I respectfully dissent. Nothing in the statutory language of Civil Code

section 47, subdivision (b) (section 47(b))9 supports the conclusion that reports of

suspected criminal activity are absolutely privileged. Rather, consideration of the

common law in California and the great weight of authority in our sister states, the

Legislature’s treatment of reports to police in other statutory schemes, its


9

Section 47(b) and (c) provide, “A privileged publication or broadcast is one

made: [¶] . . . [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding,
(3) in any other official proceeding authorized by law, or (4) in the initiation or
course of any other proceeding authorized by law and reviewable pursuant to
Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of
Civil Procedure, except . . . [¶] (1) [in inapplicable situations involving certain
marital dissolution or legal separation proceeding allegations] . . . . [¶] (2) . . . any
communication made in furtherance of an act of intentional destruction or
alteration of physical evidence undertaken for the purpose of depriving a party to
litigation of the use of that evidence, . . . [¶] (3) . . . any communication made in a
judicial proceeding knowingly concealing the existence of an insurance policy,
. . . [¶] (4) . . . [or a] recorded lis pendens [which] identifies an action previously
filed with a court of competent jurisdiction which affects the title or right of
possession of real property . . . . [¶] (c) 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 a relation to the person interested as to afford a reasonable ground
for supposing the motive for the communication to be innocent, or (3) who is
requested by the person interested to give the information.” (§ 47, subds.
(b)(1)-(4), (c).)

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criminalization of false reports, and sound public policy all demonstrate that

reports of suspected criminal activity are only qualifiedly privileged.

Section 47(b) was enacted in 1872, and its relevant language has existed

since an 1873-1874 amendment. Not until 1982, however, was it ever applied to

reports to police. (Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754

(Williams).) For more than a century prior to Williams, the citizens of California

reported crimes to police, and there is no evidence they were hesitant to do so

because of the common law rule that such reports were subject to only a qualified

privilege. (Turner v. Mellon (1953) 41 Cal.2d 45, 48 (Turner) [“citizens who have

been criminally wronged may, without fear of civil reprisal for an honest mistake,

report to the police . . . the facts of the crime and in good faith” identify the

perpetrator]; Hughes v. Oreb (1951) 36 Cal.2d 854, 858-859 (Hughes) [a person is

not liable for false imprisonment “if, acting in good faith, he merely gives

information to the authorities”]; Miller v. Fano (1901) 134 Cal. 103, 107 (Miller)

[“it would be a hard and unjust law that would hold a party responsible in damages

for false imprisonment for an honest mistake as to the identity of a party”]; Du Lac

v. Perma Trans Products, Inc. (1980) 103 Cal.App.3d 937, 942 [defendant may be

liable for false imprisonment when he knowingly gives the police false or

materially incomplete information of a nature that could be expected to stimulate

an arrest].)

Indeed, plaintiff asserts, and the majority does not dispute, that the

overwhelming weight of authority in the rest of the country is that a qualified, not

absolute, privilege applies to reports to police. While the majority dismisses this

authority on the ground that cases from our sister states do not discuss statutes

with language similar to that of section 47(b), the majority does not in fact rely on

the language of section 47(b) in reaching its conclusion regarding the scope of

immunity for reports to police. Rather, it relies primarily on case law interpreting

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section 47(b), which in turn relies solely on the public policy consideration that

citizens need open channels of communication with the police.

Typically when construing a statute, we seek to determine the Legislature’s

intent. Here, the majority virtually ignores its obligation to interpret the statute.

Rather, it relies on the “slim reed” of legislative inaction (Quinn v. State of

California (1975) 15 Cal.3d 162, 175) to justify its policy preference, noting that

while the Legislature has amended section 47 in other respects following

Williams, it has not abrogated that decision.10 (Maj. opn., ante, at p. 22.) That

inaction tells us nothing useful, however, since Fenelon v. Superior Court, supra,

223 Cal.App.3d 1476, which disagreed with Williams, has also existed for 13

years without any legislative response. Moreover, while the relevant language of

section 47(b) has existed since 1874, thus predating this court’s decisions in

Turner, supra, 41 Cal.2d 45, Hughes, supra, 36 Cal.2d 854, and Miller, supra, 134

Cal. 103, which the majority construes as inconsistent with section 47(b), the

section has never, in all of those decades, been amended to respond to these cases.

By failing to examine legislative intent, the majority overlooks the critical

fact that the Legislature has already restricted the open channels of communication

so central to the majority’s position. In other words, however much courts may

desire on public policy grounds that all reports to police be absolutely immunized,


10

The majority further states that this court “cited Williams with approval in”

Slaughter v. Friedman (1982) 32 Cal.3d 149, 156. (Maj. opn., ante, at p. 15.) It
fails to mention, however, that a short time after the decision in Fenelon v.
Superior Court (1990) 223 Cal.App.3d 1476, we acknowledged the conflict
between Fenelon and Williams but “express[ed] no opinion on the merits of the
controversy.” (Lubetzky v. State Bar (1991) 54 Cal.3d 308, 317, fn. 7.) By
acknowledging that a controversy existed, we undermined any suggestion that our
citation to Williams, supra, 129 Cal.App.3d 745, in Slaughter, supra, 32 Cal.3d at
page 156, constituted a blanket approval of that opinion.

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the fact of the matter is they are not. Rather, in at least three circumstances that

arise with everyday frequency, the Legislature has determined that reports to

police must be made in good faith in order to receive immunity.

For example, Penal Code section 11172, subdivision (a) (section 11172(a)),

enacted in 1980, bars civil and criminal liability of statutorily mandated reporters

of child abuse or neglect under the Child Abuse and Neglect Reporting Act.

However, section 11172(a) contemplates such liability for any other person

making such a report if “it can be proven that a false report was made and the

person knew that the report was false or was made with reckless disregard of the

truth or falsity of the report, and any person who makes a report of child abuse or

neglect known to be false or with reckless disregard of the truth or falsity of the

report is liable for any damages caused.” Welfare and Institutions Code section

15634, subdivision (a) (section 15634(a)), enacted in 1985, or several years after

Williams, contains a similar provision for reports of elder or dependent-adult

abuse. The purpose of both of these sections is to increase reporting of child,

elder, and dependent-adult abuse, crimes that depend on secrecy and the

helplessness of their victims for their commission. Yet even under these

circumstances, the Legislature has deemed it appropriate to preserve only a

qualified privilege for nonmandated reports. It seems unlikely the Legislature

would accord only a qualified privilege for those individuals who may be the only

voice for reporting crimes against the most vulnerable of victims, but grant

absolute immunity to those unsympathetic individuals who falsely report other

types of crimes.

Moreover, we are compelled to read the statutes as a whole, and Penal Code

section 11172(a) and Welfare and Institutions Code section 15634(a) undertake to

provide absolute civil immunity for reports to police by mandated reporters. If

Civil Code section 47(b) already provided absolute civil immunity for mandated

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reporters of these suspected crimes, there would be no reason for the Legislature to

accord them such protection in Penal Code section 11172(a) and Welfare and

Institutions Code section 15634(a). We do not assume the Legislature engages in

idle or superfluous acts. (In re J. W. (2002) 29 Cal.4th 200, 210.)

In addition, in several other instances when the Legislature has been

dissatisfied with case law interpretation of section 47(b), it has amended section

47(b) to create exceptions to its absolute immunity. Thus, for example, section

47(b) contains exceptions for “any communication made in furtherance of an act”

of spoliation of evidence and “any communication made in a judicial proceeding

knowingly concealing the existence of an insurance policy.” (§ 47(b)(2), (3).) It

therefore seems likely that if section 47(b) were intended to give absolute

immunity for reports to police, the Legislature would have simply amended Civil

Code section 47(b) to provide that false reports of child, elder, or dependent-adult

abuse by nonmandated reporters receive only qualified immunity, rather than

creating an absolute immunity for mandated reporters and a qualified immunity

for nonmandated reporters in Penal Code section 11172(a) and Welfare and

Institutions Code section 15634(a).

The majority relies on the public policy of “open channels” of

communication between citizens and police to support its interpretation that

section 47(b) grants absolute immunity to reports of suspected criminal activity to

the police. (Maj. opn., ante, at p. 26.) However, the majority’s rule means that

some reports to police are subject to a qualified privilege while others, after today,

are entitled to an absolute privilege. Therefore if the average citizen believed a

report to the police was always absolutely privileged, that belief would be

incorrect. It is not clear how such an unpredictable standard encourages such

reports or fosters open channels of communication.

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Penal Code section 11172(a) and Welfare and Institutions Code section

15634(a) are not the only statutes of their kind. Subdivisions (a) and (b) of

Education Code section 48902 require the principal of a school, or the principal’s

designee, in connection with suspending or expelling a student, to notify law

enforcement of any acts of the pupil that may constitute certain criminal activity.

Subdivision (d) of Education Code section 48902 provides, “A principal, the

principal’s designee, or any other person reporting a known or suspected act

described in subdivision (a) or (b) is not civilly or criminally liable as a result of

making any report authorized by this article unless it can be proven that a false

report was made and that the person knew the report was false or the report was

made with reckless disregard for the truth or falsity of the report.”

Under the majority’s interpretation, a principal, a principal’s designee, or any

other person reporting the alleged commission of a crime delineated in Education

Code section 48902 receives only a qualified immunity, but if any other type of

crime is reported, absolute immunity is now conferred. I am unwilling to accept

that the Legislature intended such arbitrary treatment of a school official’s or other

person’s actions.

The language of Education Code section 48902, subdivision (d), was added

in 1988, or long after Williams, supra, 129 Cal.App.3d 745. While it is

conceivable the Legislature wanted to create an exception from any absolute

immunity under Civil Code section 47(b) for a school official’s or other person’s

reports to the police that were intentionally or recklessly false, it is more

reasonable to conclude the Legislature was either creating immunity where none

existed before or modifying an existing qualified privilege to address recklessness.

Moreover, unlike Penal Code section 11172(a), which the majority dismisses as a

part of a comprehensive statutory scheme, Education Code section 48902 stands

alone. (Maj. opn., ante, at p. 24, fn. 6.) As more and more such statutes appear,

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the claim that Civil Code section 47(b) confers absolute immunity for reports to

police becomes even more suspect. Why would the Legislature continue to create

separate statutory schemes to address immunity for reports to police if a

comprehensive scheme has existed since 1874?

Nor, contrary to the majority’s assertion, does Civil Code section 47.5

“unquestionably support[] the conclusion that the privilege established by section

47(b) applies, in general, to a ‘communication to an official agency which is

designed to prompt action’ . . . including a communication to the police that is

intended to trigger an investigation into possible criminal activity.” (Maj. opn.,

ante, at p. 23, fn. omitted.) Section 47.5 addresses complaints against, not to, a

peace officer that are filed with the peace officer’s employing agency. Such a

complaint inevitably invokes an administrative process according the officer

notice, due process, and other attendant protections not present for the average

citizen when a report of the citizen’s suspected criminal activity is made to police.

Moreover, in concluding section 47(b) contains an absolute privilege for

reports to police, the majority omits mention of several significant limitations on

that privilege. Thus, while section 47(b) “bars certain tort causes of action which

are predicated on a judicial statement or publication itself, the section does not

create an evidentiary privilege for such statements. Accordingly, when allegations

of misconduct properly put an individual’s intent at issue in a civil action,

statements made during the course of a judicial proceeding may be used for

evidentiary purposes in determining whether the individual acted with the

requisite intent.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss &

Karma, Inc. (1986) 42 Cal.3d 1157, 1168 [section 47(b) “would not preclude

[plaintiff] from making evidentiary use of defendants’ statements during

negotiations to prove the intent with which defendants’ conduct was

undertaken”].) In addition, “republications to nonparticipants in the action are

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generally not privileged under section 47(2) [now section 47(b)], and are thus

actionable unless privileged on some other basis.” (Silberg v. Anderson (1990) 50

Cal.3d 205, 219 (Silberg).) Finally, as the majority does note in passing, section

47(b) applies only to communications, not conduct. (Maj. opn., ante, at p. 29;

Kimmel v. Goland (1990) 51 Cal.3d 202, 205, 212 [act of illegally taping

telephone conversation not covered by section 47(b)].)

In addition, Penal Code section 148.5 makes it a misdemeanor to knowingly

give a false report of a crime to a peace officer, and Penal Code section 118.1

makes it a crime for a peace officer to knowingly and intentionally make a false

statement regarding a material matter in a report. Thus, unlike most of the

prelitigation communications to which the absolute immunity of Civil Code

section 47(b) has been extended, false reports to police constitute a crime. The

ramifications for a false investigation and arrest can be enormous, and the

Legislature clearly abhors such false reports.

In response, the majority notes that perjury is also criminally sanctioned, but

because it acts as a deterrent to injurious publications during litigation, the

existence of the perjury sanction supported this court’s expansive interpretation of

section 47(b) in Silberg. (Maj. opn., ante, at p. 26, citing Silberg, supra, 50 Cal.3d

at pp. 218-219.) However, when perjury occurs during a trial, the victim of that

perjury enjoys many attendant protections, such as testimony under oath, vigorous

cross-examination informed by pretrial discovery, and rebuttal witnesses, that are

not present with the filing of a police report.

The majority asserts that statements reporting suspected criminal activity to

police “can be the basis for tort liability . . . if the plaintiff can establish the

elements of the tort of malicious prosecution.” (Maj. opn., ante, at p. 1.) Of

course, this is of no assistance to plaintiffs against whom charges are never

brought, as in this case, and may be of little assistance when charges are dropped

8

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before trial, as in the companion case of Mulder. (Mulder v. Pilot Air Freight

(Jan. 5, 2004, S105483) __ Cal.4th __, __ [plaintiff alleged defendants acted with

malice in supplying information to police, leading to his arrest and numerous court

appearances prior to dismissal of charges ].) That is because dismissal of criminal

charges does not, by itself, constitute a favorable termination for the purpose of

establishing malicious prosecution. (5 Witkin, Summary of Cal. Law (9th ed.

1988) Torts, §§ 421, 422, pp. 505-507; see Eells v. Rosenblum (1995) 36

Cal.App.4th 1848, 1854-1856.) Rather, malicious prosecution generally requires

the victim of the false accusation to establish that the accusation resulted in a

criminal proceeding that was terminated in his favor, i.e., in a manner inconsistent

with the accused’s guilt. (5 Witkin, supra, Torts, §§ 421, 422, pp. 505-507.)

Moreover, the majority states that making false imprisonment an “exception” to

the absolute privilege under section 47(b) would mean that “proof of a termination

in plaintiff’s favor would not be required,” as it is in a malicious prosecution

action. (Maj. opn., ante, at p. 30.) At least one case has stated, however, that

“[f]alse imprisonment and malicious prosecution are mutually inconsistent torts.”

(Cummings v. Fire Ins. Exchange (1988) 202 Cal.App.3d 1407, 1422.)

The ramifications of an intentionally false report of suspected criminal

activity to police are enormous. Citizens arrested pursuant to such a report will be

stigmatized, and forever thereafter have to note the arrest on job, credit, and

housing applications. Assertions that the charges were dropped, and of one’s

actual innocence, will likely fall on deaf ears. Under the majority’s conclusion

today, such falsely accused individuals will have no opportunity to clear their

name, or seek compensation for economic loss in defending the charges or loss to

their reputation. In the absence of clear support from either the language or the

history of section 47(b), this court should not approve absolute civil protection for

such destructive and criminal communications conduct. Rather, it should

9

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conclude reports to police are subject to a qualified privilege under either section

47, subdivision (c), or extant common law.

The Legislature has not hesitated to amend section 47(b) when courts have

misinterpreted its provisions. I urge the Legislature to do so here.

BROWN, J.

WE CONCUR:

BAXTER,

J.

WERDEGAR,

J.

10

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Hagberg v. California Federal Bank
__________________________________________________________________________________

Unpublished Opinion NP opn. filed 3/5/02 - 2d Dist., Div. 2
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________

Opinion No. S105909
Date Filed: January 5, 2004
__________________________________________________________________________________

Court: Superior
County: Los Angeles
Judge: David L. Minning

__________________________________________________________________________________

Attorneys for Appellant:

Vakili & Leus, Sa’id Vakili; and Peter A. Zablotsky for Plaintiff and Appellant.

Gary Williams for ACLU Foundation of Southern California as Amicus Curiae on behalf of Plaintiff and
Appellant.



__________________________________________________________________________________

Attorneys for Respondent:

Delia Y. Guevara; Haight, Brown & Bonesteel, Jules S. Zemen; Yocca Patch & Yocca, Mark W. Yocca
and Paul Kim and for Defendant and Respondent.

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Andrea Lynn Hoch, Chief
Assistant Attorney General, James M. Schiavenza, Assistant Attorney General, and Paul T. Hammerness,
Deputy Attorney General, as Amici Curiae on behalf of Defendant and Respondent.

Leland Chan and C. Dawn Casey for California Bankers Association and American Bankers Association as
Amici Curiae on behalf of Defendant and Respondent.


1

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

Peter A. Zablotsky
Touro College
Jacob D. Fuchsberg Law Center
300 Nassau Road
Huntington, New York 11743-4342
(631) 421-2244 x381

Jules S. Zemen
Haight, Brown & Bonesteel
6080 Center Drive, Suite 800
Los Angeles, CA 90045-1574
(310) 215-7100


2

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Opinion Information

Date:	Docket Number:
Mon, 01/05/2004	S105909

Disposition
Jan 5 2004	Opinion: Affirmed

Dockets
Apr 15 2002	Petition for review filed   appellant Lydia Ortiz Hagberg
Apr 18 2002	Received Court of Appeal record   1 doghouse
May 6 2002	Answer to petition for review filed   respondent California Federal Bank
May 16 2002	Reply to answer to petition filed   by counsel for appellant Lydia Ortiz Hagberg
Jun 7 2002	Time extended to grant or deny review   to 7-12-02
Jun 26 2002	Review Granted/briefing deferred (Rule 29.3) - civil case   Further action in this matter is deferred pending consideration and disposition of a related issue in Balser v. Wells Fargo Bank, S101833 and Mulder v. Pilot Air Freight, S105484 (see Cal. Rules of Court, rule 29.2(c)), or pending further order of the court. Submission of additional briefing, pursuant to California Rules of Court, rule 29.3, is deferred pending further order of the court. Votes: Geroge, CJ., Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Jun 28 2002	Application filed to:   Admission to appear Pro Hac Vice by Prof. Zablotsky
Jul 11 2002	Certification of interested entities or persons filed   submitted by counsel for respondent Cal Fed Bank
Jan 29 2003	Briefing ordered in previously Held case   Review was granted in this matter on June 26, 2002, and briefing and further action was deferred pending consideration and disposition of a similar issue in Balser v. Wells Fargo Bank, S101833 and Mulder v. Pilot Air Freight, or pending further order of the court. Appellant is now directed to serve and file, on or before February 28, 2003, Brief on the Merits. Additional briefing is to be served and filed in a timely fashion. (See rule 29.1, formerly rule 29.3, Cal. Rules of Court.)
Feb 28 2003	Opening brief on the merits filed   appellant Lydia Ortiz Hagberg
Mar 13 2003	Request for extension of time filed   for resp to file the answer brief on the merits, to 4-27.
Mar 17 2003	Received:   amended p.o.s. for opening brief/merits , aplnt., Lydia O. Hagberg
Mar 25 2003	Extension of time granted   to 4/28/03 for resp to file the answer brief on the merits
Apr 16 2003	Request for extension of time filed   for resp to file the answer brief on the merits, to May 17.
Apr 21 2003	Extension of time granted   to 5-19-03 for resp to file the answer brief on the merits.
May 19 2003	Answer brief on the merits filed   by counsel for respondent.
May 19 2003	Request for judicial notice filed (in non-AA proceeding)   counsel for respondent
May 27 2003	Notice of substitution of counsel received   Respondent's notice of substitution of counsel filed.
Jun 9 2003	Reply brief filed (case fully briefed)   by appellant Lydia Ortiz Hagberg
Jun 23 2003	Amicus Curiae Brief filed by:   Calif. Attorney General
Jun 25 2003	Request for extension of time filed   response to ac brief of Atty General to 8-14-03>>appellant Lydia Ortiz Hagberg
Jul 9 2003	Extension of time granted   to 8-14-03 for aplt to respond to the A/C brief of the Cal. A.G.
Jul 9 2003	Request for extension of time filed   to file amicus curiae brief ACLU asking to July 18, 2003 brief will support of appellant Lydia Ortiz Hagberg
Jul 10 2003	Received application to file amicus curiae brief; with brief   from Cal. Bankers Assn. and American Bankers Assn. (40k)
Jul 15 2003	Extension of time granted   for ACLU Foundation of So. Cal. to file A/C brief in support of aplt. to 7-18-03. No further extensions of time are contemplated. Answers may be filed w/in 20 days of the filing of the brief.
Jul 15 2003	Request for extension of time filed   response to ac brief of Calif Bankers Assn and American Bankers Assn (aplt requests "30-day extension" to 8-28-03>>appellant Lydia Ortiz Hagberg
Jul 17 2003	Permission to file amicus curiae brief granted   by Calif. Bankers Association and American Bankers Association in support of resp. Answers may be filed w/in 20 days.
Jul 17 2003	Amicus Curiae Brief filed by:   Calif. Bankers Assn. and American Bankers Assn. in support of resp.
Jul 18 2003	Amicus Curiae Brief filed by:   ACLU Foundation of Southern California [in support of appellant Hagberg]
Jul 21 2003	Request for extension of time filed   by resp Cal Fed to respond to A/C brief of ACLU, to 8-27.
Jul 23 2003	Extension of time granted   to 8-18-03 for aplt to file response to the a/c brief of Calif Bankers and American Bankers.
Jul 30 2003	Extension of time granted   to 8-27-03 for resp to file the answer to the A/C brief of the ACLU. No further extensions of time are contemplated.
Aug 13 2003	Response to amicus curiae brief filed   appellant Lydia Ortiz Hagberg
Aug 18 2003	Response to amicus curiae brief filed   to ac brief of Calif Bankers Assn & American Bankers Assn >>appellant Lydia Ortiz Hagberg
Aug 28 2003	Response to amicus curiae brief filed   by respondent Calif. Fed. Bank to A/C brief of ACLU (timely per CRC 40k)
Aug 28 2003	Case ordered on calendar   10-09-03, 9am, L.A.
Sep 18 2003	Request for judicial notice denied   The request for judicial notice filed on May 19, 2003, is denied.
Sep 19 2003	Application to appear as counsel pro hac vice granted   by Prof. Peter Zablotsky for aplt at oral argument.
Oct 9 2003	Cause argued and submitted
Jan 5 2004	Opinion filed: Judgment affirmed in full   Majority opinion by George, C.J. ---------------joined by Kennard, Chin, Moreno, JJ. Dissent by Brown, J.---------------joined by Baxter, Werdegar, JJ.
Feb 5 2004	Remittitur issued (civil case)

Briefs
Feb 28 2003	Opening brief on the merits filed
May 19 2003	Answer brief on the merits filed
Jun 9 2003	Reply brief filed (case fully briefed)
Jun 23 2003	Amicus Curiae Brief filed by:
Jul 17 2003	Amicus Curiae Brief filed by:
Jul 18 2003	Amicus Curiae Brief filed by:
Aug 13 2003	Response to amicus curiae brief filed
Aug 18 2003	Response to amicus curiae brief filed
Aug 28 2003	Response to amicus curiae brief filed

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