Stanford Law School - Robert Crown Law Library

Filed 1/5/04 (This opn. follows the companion opn. in Hagberg, filed same date.)

IN THE SUPREME COURT OF CALIFORNIA

ROBERT P. MULDER,
Plaintiff and Appellant,
S105483
v.
Ct.App. 2/4 B146633
PILOT AIR FREIGHT et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. BC212980

In the present case, as in the case of Hagberg v. California Federal Bank
(Jan. 5, 2004, S105909) ___ Cal.4th ___, also filed today, we granted review to
determine whether the privilege established by Civil Code section 47, subdivision
(b) (section 47(b)),1 for communications made in legislative, judicial, or any other
official proceedings, applies to statements made when a citizen contacts law
enforcement personnel to report suspected criminal activity on the part of another
person.
In this case, plaintiff Robert Mulder, a commercial dealer in salvage
material, alleged that he was arrested after defendant Steve Covert, an employee of
defendant Pilot Air Freight, contacted the Los Angeles Police Department to
report that Mulder was in possession of a flight recorder that had been stolen from
Pilot Air Freight. Mulder alleged that defendants knew or should have known of

1 Statutory references are to the Civil Code unless otherwise indicated.
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information indicating that Mulder legitimately had acquired the flight recorder
from a man who had bought it from an employee of Pilot Air Freight, but that
defendants failed to inform the police of that information. According to Mulder’s
allegations, prior to the arrest Covert entered into negotiations with Mulder to
purchase the flight recorder, but did not inform Mulder that Covert had contacted
the police concerning Mulder’s possession of the equipment. A price ultimately
was agreed upon, and on January 6, 1999, two undercover Los Angeles police
officers entered Mulder’s office and tendered defendants’ check as payment for
the flight recorder. They departed but returned with eight other officers. The
officers handcuffed and searched Mulder and executed a warrant for his arrest in
the presence of witnesses. The complaint alleged that, as a consequence of the
arrest, Mulder “had to appear numerous times in criminal court where the final
result was a dismissal of the case.”
On July 2, 1999, Mulder filed a complaint naming Covert and Pilot Air
Freight as defendants. He alleged causes of action for false imprisonment and
intentional infliction of emotional distress, asserting that defendants had been
motivated by malice when they supplied the information that was the basis for his
arrest by the Los Angeles police. He sought damages, including punitive
damages, for loss of reputation, loss of business opportunities, humiliation, and
emotional distress.
Defendants moved for summary judgment or, in the alternative, summary
adjudication. The trial court, determining that the issue was limited to the
question whether the absolute privilege established by section 47(b) shielded
defendants’ conduct in reporting to the police that plaintiff was in possession of
their stolen flight recorder, denominated the motion as one for judgment on the
pleadings. After supplemental briefing in which plaintiff opposed judgment on
the pleadings and requested leave to amend the complaint to allege a cause of
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action for malicious prosecution, the court granted judgment on the pleadings,
relying on the privilege established by section 47(b). The court denied plaintiff’s
request to amend the complaint, finding the request untimely. At a hearing
subsequent to the filing of the notice of appeal, the trial court expressed some
concern that it should have permitted plaintiff to amend the complaint.
Because the trial court treated the motion for summary judgment as a
motion for judgment on the pleadings, the Court of Appeal did not consider
evidence proffered in support of or in opposition to the motion for summary
judgment, but confined its review to the allegations of the complaint. The
appellate court affirmed the judgment to the extent that it determined that section
47(b) barred plaintiff’s causes of action for false imprisonment and intentional
infliction of emotional distress. At the same time, the Court of Appeal reversed
the trial court’s order denying plaintiff’s request for leave to amend the complaint
and remanded for further proceedings on the merits of the request, determining
that the trial court erred in denying the motion on procedural grounds. The latter
element of the Court of Appeal’s judgment is not before us.
For the reasons stated in our opinion in Hagberg v. California Federal
Bank, supra, ___ Cal.4th ___, we agree with the Court of Appeal and the trial
court that plaintiff’s causes of action for false imprisonment and intentional
infliction of emotional distress are barred by the absolute privilege established by
section 47(b). As we explained in Hagberg v. California Federal Bank, supra,
___ Cal.4th ___, we agree with the great weight of authority in our Courts of
Appeal that concludes the privilege established by section 47(b) applies to a
communication “ ‘concerning possible wrongdoing, made to an official
governmental agency such as a local police department, . . . [if the ]
communication is designed to prompt action by that entity . . . .’ ” (Hagberg v.
California Federal Bank, supra, ___ Cal.4th ___ [p. 14].) Such a conclusion, we
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explained, “serves the important public interest of securing open channels of
communications between citizens and law enforcement personnel and other public
officials charged with investigating and remedying wrongdoing.” (Id. at p. ___
[p. 25].)
Plaintiff contends that the privilege established by section 47(b) should not
bar a cause of action for false imprisonment. That statute bars tort actions based
on privileged communications, with the exception of a cause of action for
malicious prosecution. (Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216.) In
Hagberg v. California Federal Bank, supra, ___ Cal.4th ___ [pp. 25-29], we
declined to add a further exception for the tort of false imprisonment, and plaintiff
does not supply any basis for us to conclude otherwise. Finally, the Court of
Appeal in the present case reasonably concluded, based upon the allegations in the
complaint, that plaintiff’s claim for false imprisonment was based upon
defendants’ privileged communications with the police rather than on any
noncommunicative conduct on defendants’ part.
For the foregoing reasons, the judgment of the Court of Appeal is affirmed.
GEORGE, C.J.
WE CONCUR:

KENNARD, J.
CHIN, J.
MORENO, J.
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DISSENTING OPINION BY BROWN, J.

I dissent. For the reasons stated in my dissenting opinion in Hagberg v.
California Federal Bank, FSB (Jan. 5, 2004, S105909) __ Cal.4th __, also filed
today, I disagree that reports of suspected criminal activity are absolutely
privileged under Civil Code section 47, subdivision (b). Rather, such reports are
subject to a qualified privilege under either section 47, subdivision (c), or
California common law existing for over a century.
BROWN, J.

WE CONCUR:

BAXTER,
J.
WERDEGAR,
J.
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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Mulder v. Pilot Air Freight
__________________________________________________________________________________

Unpublished Opinion

NP opn. filed 2/14/02 - 2d Dist., Div. 4
Original Appeal
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S105483
Date Filed: January 5, 2004
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: Alexander H. Williams III

__________________________________________________________________________________

Attorneys for Appellant:

Ezra Brutzkus Gubner, Robert Ezra and G. Michael Jackson for Plaintiff and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bragg, Serota & Kuluva, Sydnee R. Singer; Bragg & Dziesinski, Robert A. Bragg and Jennifer A. Riso for
Defendants and Respondents.

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

Robert Ezra
Ezra Brutzkus Gubner
16830 Ventura Boulevard, Suite 411
Encino, CA 91436
(818) 995-0215

Robert A. Bragg
Bragg & Dziesinski
2 Embarcadero Center, Suite 1400
San Francisco, CA 94111
(415) 954-1850


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Opinion Information

Date:	Docket Number:
Mon, 01/05/2004	S105483

Disposition
Jan 5 2004	Opinion: Affirmed

Dockets
Mar 26 2002	Petition for review filed   counsel for appellant, Robert Mulder
Mar 28 2002	Record requested
Mar 28 2002	Received Court of Appeal record   one doghouse
May 15 2002	Letter sent to:   all parties enclosing copies of grant order and "Certification of Interested Entities or Persons" form.
May 15 2002	Petition for Review Granted (civil case)   Votes: George, CJ., Kennard, Werdegar, Chin, Brown and Moreno, JJ.
May 15 2002	Second Record Request   Additional Record -- Vol. 2
May 15 2002	Received Court of Appeal record   one doghouse transmitted overnight to henrietta.
May 30 2002	Certification of interested entities or persons filed   by Sydnee R. Singer of Bragg, Seota & Kuluva, counsel for defendant/respondent Pilot Air Freight.. ( Received in L.A. Office )
Jun 14 2002	Opening brief on the merits filed   by counsel for appellant Robert P. Mulder
Jul 11 2002	Association of attorneys filed for:   Bragg & Dziesinski for resondent Steve Covert and Pilot Air Freight
Jul 12 2002	Answer brief on the merits filed   by counsel for respondent Pilot Air Freight and Steve Covert.
Aug 1 2002	Reply brief filed (case fully briefed)   40k, by appellant Robert P. Mulder
Aug 28 2003	Case ordered on calendar   10-09-03, 9am, L.A.
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 6 2004	Remittitur issued (civil case)
Feb 6 2004	Note:   Certified copies sent to Second District, Division Four
Feb 25 2004	Received:   Receipt for remittitur from Second District, Division Four, signed for by S. Vevevka, Deputy

Briefs
Jun 14 2002	Opening brief on the merits filed
Jul 12 2002	Answer brief on the merits filed
Aug 1 2002	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website