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August 5, 1999


The opinion of the court was delivered by: Fogel, District Judge.


Defendant Thomas Brunton's motion for summary judgment, argued May 17, 1999, requires the Court to address a split of authority concerning whether police reports constitute official communications entitled to an absolute privilege pursuant to California Civil Code § 47. The Court concludes that an absolute privilege is applicable and thus will render judgment in favor of Brunton.*fn1

I. Facts

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.

II. Discussion

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. Standard

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

As noted above, judgment for Brunton is warranted only if California Civil Code § 47 cloaks with absolute privilege relevant 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 judgment).

"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 ...

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