The opinion of the court was delivered by: Fogel, District Judge.
ORDER GRANTING DEFENDANT BRUNTON'S MOTION FOR SUMMARY JUDGMENT
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.
A motion for summary judgment*fn2 should be granted if there
is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,
106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). The moving party
bears the initial burden of informing the Court of the basis for
the motion, and identifying the portions of the pleadings,
depositions, answers to interrogatories, admissions, or
affidavits which demonstrate the absence of a triable issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323,
106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).
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.
B. Police Reports are Absolutely Privileged Under California
Civil Code § 47
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 ...