The opinion of the court was delivered by: Fogel, District Judge.
This case arises from a workplace dispute between Plaintiff and
Brunton, who was Plaintiff's subordinate. The dispute may or may
not have culminated with Johnson striking Brunton in the chest
with both fists. Whether or not Johnson actually hit Brunton,
Brunton told medical providers he had been hit in the chest and
also reported to law enforcement officers that Johnson had hit
him. Johnson then filed the instant lawsuit, claiming that he
lost his job and suffered various other adverse consequences
because of Brunton's allegedly false statements.
Brunton attacks both aspects of Plaintiff's defamation cause of
action by arguing that (1) statements made to medical providers
did not identify Johnson and therefore could not have been
defamatory; and (2) statements made to law enforcement officers
were absolutely privileged as "official communications" pursuant
to California Civil Code § 47(b)(3). Johnson concedes that
Brunton's statements to medical providers are not actionable
because the medical records do not reflect that Brunton
identified Johnson such that "a third party [could] understand
the [statements'] applicability to plaintiff." Neary v. Regents
of University of California, (1986) 185 Cal.App.3d 1136,
230 Cal.Rptr. 281. The sole remaining question, therefore, is whether
a police report is subject to an absolute privilege or only a
qualified privilege under California Civil Code § 47.
In the instant case, whether Brunton has met his moving burden
depends entirely upon the Court's interpretation of California
Civil Code § 47. If section 47 mandates the application of
absolute privilege to the category of communication at issue,
then Brunton's burden is both met and unrebutted.
As noted above, judgment for Brunton is warranted only if
California Civil Code § 47 cloaks with absolute privilege
communications to law enforcement entities. The statute provides
in part as follows:
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. . . . [¶] (c) In a
communication, without malice, to a person interested
therein, (1) by one who is also interested. . . .
Thus if a police report is properly considered an "official
proceeding authorized by law," it is subject to absolute
privilege under section 47(b)(3). Otherwise, the police report at
issue in this case only could be privileged under section 47(c),
applicable to communications made "without malice" (in which case
Brunton has provided no evidentiary basis for granting summary
"When interpreting state law, federal courts are bound by
decisions of the state's highest court." Nelson v. City of
Irvine, 143 F.3d 1196, 1206 (9th Cir. 1998). Here, there are no
California Supreme Court cases addressing whether police reports
are properly categorized under section 47(b)(3) or under section
47(c), and the issue is the subject of a split of authority among
the California Courts of Appeal.*fn3 "Where the state's
intermediate appellate courts have reached conflicting results,
the federal court must ascertain for itself the most
authoritative assessment of state law." Air-Sea Forwarders v.
Air Asia Company, 880 F.2d 176, 186 (9th Cir. 1989).
The line of cases cloaking police reports with the absolute
privilege of section 47(b)(3) may be traced to Williams v.
Taylor, 129 Cal.App.3d at 745, 181 Cal.Rptr. 423. The Williams
court expressed a dual rationale for finding an absolute
privilege. First, police reports were found to satisfy the
"official proceeding" requirement of section 47 because "a
communication [d]esigned to prompt action by [an official] entity
is as much a part of an `official proceeding' as a communication
made after an official investigation has commenced." Id. at
753, 181 Cal.Rptr. 423. Second, the court opined that as a matter
of public policy, members of the community should feel at liberty
to report suspected criminal activities without fear of civil
liability. Id. at 753, 181 Cal.Rptr. 423.
The other side of the split is represented by Fenelon v.
Superior Court, (1990) 223 Cal.App.3d 1476, 273 Cal.Rptr. 367.
The Fenelon court criticizes the decision in Williams for
ignoring contrary authority from other jurisdictions (where
qualified privilege is the rule) and for ignoring a perceived
requirement that the "official proceeding" of section 47 must be
of a judicial or quasi-judicial nature. The latter point is
buttressed in Fenelon by the argument that notice and hearing
procedures are required to offset the potential for abuse
inherent in any absolute privilege.
This Court concludes that the California Supreme Court would
adopt the position taken in Williams. The Court reaches this
result because California's public policy, as explicated both by
its courts and by its Legislature, favors the application of an
absolute privilege, because existing Ninth Circuit authority
addressing the identical issue is in accord, and because the
policy arguments in Fenelon ultimately are unpersuasive.
1. Policy Considerations and Precedent Support the Application
of an Absolute Privilege
Of great significance to this Court's interpretation of section
47 is the fact that the great majority of California's
intermediate appellate courts have tended to conclude, and the
California Legislature appears to have presumed without saying so
explicitly, that section 47(b)(3) applies to police reports. The
fact that the majority of California Courts of Appeal which have
considered the issue have tended to agree with Williams, (see,
e.g., Cabesuela v. Browning-Ferris Industries, (1998)
68 Cal.App.4th 101, 80 Cal.Rptr.2d 60; Passman v. Torkan, (1995)
34 Cal.App.4th 607, 40 Cal.Rptr.2d 291; Hunsucker v. Sunnyvale
Hilton Inn, (1994) 23 Cal.App.4th 1498, 28 Cal.Rptr.2d 722) must
be afforded some weight in predicting how California's highest
court would rule. The Passman court's observation that "[t]o
date no reported appellate decision has followed the reasoning
and rationale of Fenelon," should not be taken lightly.
Passman, 34 Cal.App.4th at 618, 40 Cal.Rptr.2d 291.*fn4
Moreover, Cabesuela and Hunsucker are significant because
they stem from trial court decisions rendered by the Santa Clara
Superior Court, from whence the instant case was removed. A
decision in this case contradicting the findings of absolute
privilege in Cabesuela and Hunsucker would constitute a
potential incentive for litigants in California's Sixth District
to forum shop, comparing the legal stock of the state and federal
courts.*fn5 A finding by this Court of qualified privilege would
therefore be in tension with the policy considerations delineated
in Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82
L.Ed. 1188 (1938).
The applicability of absolute privilege to communications made
in the context of ongoing governmental investigations into
suspected wrongdoing is undisputed, except for the contrary
implication of Fenelon. See, e.g., Braun v. Bureau of State
Audits, (1998) 67 Cal.App.4th 1382, 1388-89, 79 Cal.Rptr.2d 791.
The relevant inquiry in this case simply is whether there should
be any difference in the treatment afforded to
pre-investigation communications intended to trigger official
action. Research reveals that even this narrow question has
already been answered in the affirmative by California courts.
See King v. Borges, (1972) 28 Cal.App.3d 27, 34, 104 Cal.Rptr. 414;
accord, Braun, 67 Cal.App.4th 1382, 1390, 79 Cal.Rptr.2d 791;
Imig v. Ferrar, (1977) 70 Cal.App.3d 48, 138 Cal.Rptr. 540.
The conclusion that absolute privilege applies to police
reports is further bolstered by an examination of how the
Legislature otherwise has chosen to deal with the potential for
citizen abuse of law enforcement mechanisms. For instance, Penal
Code § 11172 explicitly causes persons filing knowingly false
child abuse reports to be "[civilly] liable for any damages
caused." False police reports of child molestation
54 Cal.Rptr.2d 158. That the Legislature saw fit explicitly to
impose liability for knowingly false publications of child abuse
is evidence of its belief that such utterances were otherwise
subject to absolute privilege; otherwise, the liability provision
of section 11172 would accomplish nothing because the common law
of defamation already would impose liability.
In contrast to Penal Code § 11172, Penal Code § 148.5, which
makes it a misdemeanor knowingly and falsely to report to a law
enforcement official "that a felony or misdemeanor has been
committed," contains no provision for civil liability. The
Legislature's special treatment of false child abuse reports in
contrast to its treatment of other police reports indicates an
intent to shelter the publisher of the latter against all but a
criminal conviction obtained under a reasonable doubt
In addition to the foregoing reasoning and authority, the only
relevant Ninth Circuit case to discuss section 47 strengthens
even further the Erie doctrine considerations discussed
earlier. See Forro Precision Inc. v. IBM,
(9th Cir. 1982). In Forro, communications between IBM and the
authorities were held to be absolutely privileged despite
allegations that IBM misled the San Jose Police Department in
order to enlist its help to investigate a business rival. While
the Ninth Circuit in Forro apparently found its own application
of section 47 quite unremarkable, the holding amounts to on-point
speculation that the California Supreme Court would find even bad
faith police reports to be absolutely privileged under section
47. See Forro, 673 F.2d at 1055.
Although a circuit court's prediction of state law is not
binding in the same way as is its definitive interpretation of
federal law, as a practical matter a circuit court's
interpretations of state law must be accorded great deference by
district courts within the circuit. Were Plaintiff to appeal the
instant ruling, the Ninth Circuit would review, de novo, this
Court's interpretation of California law. See Salve Regina
College v. Russell, 499 U.S. 225, 111 S.Ct. 1217, 113 L.Ed.2d
190 (1991) (finding appellate level deference to district courts'
state law interpretations to violate the Erie and stare
decisis doctrines). Then, in conducting its de novo review, a
Ninth Circuit panel not sitting en banc would be bound to
follow Forro, and thereby would be compelled to reverse any
decision which necessarily rejected Forro. The Ninth Circuit's
decision in Forro as reflected in Salve's gloss on Erie
therefore looks, in the present light, very much like controlling
authority requiring a finding of absolute privilege.
3. The Fenelon Court's Arguments are not Persuasive
To be sure, the conclusions drawn from the above considerations
are not beyond reasoned debate, as illustrated by the decision in
Fenelon, 223 Cal.App.3d 1476, 273 Cal.Rptr. 367. The Fenelon
court's chief justifications for finding only a qualified
privilege are (1) conformity with the law of other jurisdictions,
and (2) the fear that absolute privilege without the safeguards
of quasi-judicial proceedings would facilitate malicious use of
law enforcement mechanisms. This Court, however, ultimately
disagrees with both the reasoning and the conclusions set forth
In Fenelon, numerous cases from other jurisdictions are cited
without analysis for
the proposition that Williams marks an unjustified deviation
from the majority rule of qualified privilege for police reports.
See Fenelon, 223 Cal.App.3d at 1482, 273 Cal.Rptr. 367.
Although the number of authorities cited nevertheless is
impressive, the persuasive force of these authorities reminds the
Court of an anecdote involving Albert Einstein. Some time after
Einstein revolutionized the discipline of physics with his
general and special theories of relativity, a book was published
entitled "100 Authors Against Einstein." Einstein's reputed
response to the "100 Authors" was simply that if he had been
wrong then "one would have been enough." Stephen Hawking, A
Brief History of Time 178 (Bantam Books 1988).
The weight of numbers is relevant to show that Williams is in
the minority only if the cases cited in Fenelon involve the
interpretation of statutes comparable to section 47(b)(3).*fn7
However, eighteen of the nineteen cases merely apply the common
law privilege for good faith communications between interested
parties (codified in California by Civil Code § 47(c)(1)), or
similar case law precedent. While the nineteenth case, Hardaway
v. Sherman Enterprises, Inc., (1974) 133 Ga. App. 181,
210 S.E.2d 363, did involve the application of a statutorily created
privilege, the possibility of absolute privilege did not arise
because the statute at issue explicitly applied only to
communication made in "good faith." Id. at 181, 210 S.E.2d 363
citing Code of Georgia § 105-709(1) (now § 1-5-7).
In none of the nineteen cases was the scope of a statutory
privilege for "official proceeding[s]" addressed. Thus, Fenelon
's lengthy recitation of out-of-state cases applying qualified
privilege to various citizen reports of criminal activities has
little bearing upon the determination of how section 47 should be
applied to police reports in California.
b. Section 47 Does not Require that an "Official Proceeding" be
The Fenelon court also was concerned that "to clothe with
absolute immunity communications made to a body acting in other
than a quasi-judicial capacity . . . would provide an unchecked
vehicle for silent but effective character assassination."
Fenelon, 223 Cal.App.3d at 1483, 273 Cal.Rptr. 367 quoting
Toker v. Pollak, (1978) 44 N.Y.2d 211, 405 N.Y.S.2d 1,
376 N.E.2d 163. To support the proposition that a quasi-judicial
proceeding is required by section 47(b)(3), the Fenelon court
relies on McMann v. Wadler, (1961) 189 Cal.App.2d 124,
11 Cal.Rptr. 37. In McMann, "the `official proceeding' embraced in
the purview of the statute" was determined to be "that which
resembles judicial and legislative proceedings, such as
transactions of administrative boards and quasi-judicial and
quasi-legislative proceedings." Id. at 129, 11 Cal.Rptr. 37.
This Court respectfully suggests however, that the Fenelon
court reads McMann too broadly; the actual holding of the case
was simply that the term "official proceeding" does not describe
a "meeting of a board of directors of a nonprofit corporation or
the like." Id. at 129, 11 Cal.Rptr. 37.*fn8
The Fenelon court's paramount concern was with a perceived
lack of safeguards. The court noted that, prior to Williams,
absolute privilege applied only where the governmental agency
receiving a report was authorized to hold its own
quasi-judicial proceeding.*fn9 See, e.g., Imig v. Ferrar,
(1977) 70 Cal.App.3d 48, 138 Cal.Rptr. 540 (concerning a report
of police misconduct where a police board was empowered to hold
hearings and discipline officers). The Court reasoned that the
extra safeguard of a quasi-judicial proceeding is necessary to
provide some protection against the potential abuses of absolute
privilege. The relevant forum, however, for determining the truth
of a police report is a criminal trial, whose safeguards go
beyond those employed in any quasi-judicial proceeding. The
absence of a civil remedy for a false report is a significant
policy consideration, but one which must be balanced against the
need to encourage members of the community to communicate freely
with law enforcement agencies without fear of being sued.
In sum, the reasoning set forth in Fenelon does not militate
against finding that section 47 confers absolute privilege upon
police reports. The cases cited by Fenelon to show that other
jurisdictions apply only qualified privilege are of little weight
because none of them interpret statutes similar to section 47.
Moreover, the lack of a quasi-judicial proceeding associated with
police reports does not relevantly distinguish such reports from
other absolutely privileged communications.
In light of all of the above, this Court concludes that
California's highest court would hold that police reports are
absolutely privileged under California Civil Code § 47(b)(3).
While this interpretation of California law leaves open the
possibility that some real wrongs may go unredressed, and while
the Court has not been unmindful of this possibility in
conducting its analysis, the clear weight of judicial and
legislative authority appears to support this conclusion.
Accordingly, Brunton's motion for summary judgment is granted
as to Plaintiff's Fourth Cause of Action. Pursuant to
stipulation, the Fifth and Sixth Causes of Action also are
dismissed with prejudice as to the moving defendant.