Stanwyck v. Horne

Opinion

SUMMARY

The Rules of Procedure of the State Bar of California (Rule(s)) provide for an independent investigation of complaints made by persons against attorneys. Where such an investigation occurs or is presumed to have occurred, no action for malicious prosecution will lie even if the bar proceedings are terminated in favor of the attorney.

FACTUAL^[1] AND PROCEDURAL BACKGROUND

Appellant Steven J. Stanwyck, a member of the State Bar, filed a complaint in the superior court against respondent David Horne and several Doe defendants^[2] alleging causes of action for malicious prosecution of an administrative proceeding and conspiracy.

The complaint alleges that in January 1975, Horne, acting for himself and as agent for the other respondents, initiated without probable cause a false

Each of the respondents filed general and special demurrers. The trial court sustained the general demurrers, basing its ruling on this division’s opinion in Werner v. Hearst Publications, Inc. (1944) 65 Cal.App.2d 667 [ 151 P.2d 308 ], and dismissed Stanwyck’s complaint pursuant to Code of Civil Procedure section 581, subdivision 3. Stanwyck filed a timely notice of appeal from the order of dismissal.

Appellant’s Contentions on Appeal

Stanwyck contends that the Werner decision is incorrect and inconsistent with our Supreme Court’s decision in Hardy v. Vial (1957) 48 Cal.2d 577 [ 311 P.2d 494 ], and the decision in Miley v. Harper (1967) 248 Cal.App.2d 463 [ 56 Cal.Rptr. 536 ].

He also contends that under section 680 of the Restatement of Torts,^[3] which was adopted by Hardy v. Vial, supra, 48 Cal.2d 577 , a person who lodges a complaint before an administrative body is subject to an action for malicious prosecution and that respondents “initiated” such a complaint against him despite the State Bar’s own investigation.

We disagree with Stanwyck’s contentions.

Hardy v. Vial Is Distinguishable and Has No Application to State Bar Disciplinary Proceedings

On the surface, the decision in Hardy v. Vial, supra, 48 Cal.2d 577 , may seem inconsistent with the decision in Werner, supra, 65 Cal.App.2d 667 . But, a close review reveals important distinguishing facts.

Plaintiff Hardy was discharged from his employment as a professor at Long Beach State College as a result of charges made by the defendants. The defendants included seven persons (the “school defendants”) who were officials of the college or of the State Department of Education and three persons, Vial, Pond, and Egolf, who had no connection with the college or the department. One of the school defendants was Roy Simpson, the Director of Education of the State of California. General demurrers of Vial and the school defendants to Hardy’s complaint were sustained without leave to amend and Hardy appealed from the ensuing judgments.

The allegations of Hardy’s complaint were as follows: Defendants wrongfully, maliciously and without probable cause conspired to falsely accuse him of gross immorality and unprofessional conduct during the period of his employment for the purpose of procuring his dismissal. Pursuant to the conspiracy, Vial, Pond and Egolf, aided and abetted by the other defendants, made and filed with the college affidavits falsely charging him with the commission of base and depraved acts. Because of these affidavits and the acts alleged therein, he was dismissed .from his employment at the college. After a hearing, the State Personnel Board found that the charges were untrue and that the grounds for the dismissal were not sustained by the evidence. The board revoked the dismissal and ordered Simpson to return Hardy to his position at the college. No review of the board’s decision was sought and Hardy was returned to his position.

The decision in Hardy v. Vial did not specify the nature of the administrative proceedings which were instituted to obtain Hardy’s dismissal by Simpson. The nature of those proceedings appear to have been pivotal to the court’s decision. We have taken judicial notice of the records on appeal in Hardy v. Vial pursuant to Evidence Code section 459, subdivision (c), and have determined that the Education Code sections then in effect^[4] pro

Thus, the situation in Hardy fits squarely within section 680 of the Restatement of Torts: (1) each of defendants was accused of initiating or procuring the initiation of the administrative proceedings against him; (2) the administrative body, namely the Department of Education, through its Director Simpson, had the power to adversely affect Hardy’s legally protected interest, i.e., his employment status; (3) the proceedings were allegedly instituted without probable cause or foundation for the purpose of securing action by the administrative body; and (4) the proceedings were terminated in Hardy’s favor.

More specifically, it appears that defendants’ affidavits were the sole basis upon which the recommendation for dismissal and dismissal of Hardy were effectuated.^[5] Furthermore, there is no indication that any hearing was conducted prior to Hardy’s dismissal; the only hearing that was apparently conducted was the subsequent hearing on appeal before the State Personnel Board. Our Supreme Court concluded that an action for malicious prosecution could be stated against the nonschool defendant Vial but not against the school defendants since they were immune from civil liability.

The administrative proceedings conducted in Hardy v. Vial, supra, 48 Cal.2d 577 , are quite distinguishable from the State Bar disciplinary proceedings which we shall discuss in detail in the next section.

The Holding in Werner Is Applicable to This Appeal

A. The Holding in Werner Precludes a Malicious Prosecution Action Against a Person Who Complains to the State Bar

In Werner, supra, 65 Cal.App.2d 667 , the trial court sustained defendant’s general demurrers to Werner’s complaint without leave to amend and

On appeal, the trial court judgment was upheld. The Werner decision took judicial notice of the State Bar rules pertaining to disciplinary proceedings of members with particular reference to rules 10 and 11.^[6] These two rules provided that a preliminary investigation was to be conducted before a formal proceeding could be instituted by the issuance of a notice to show cause. Since Werner’s complaint did not allege that the State Bar had not conducted a preliminary investigation, the Werner decision held that it must be presumed that the members of the local administrative committee, being public officers, regularly performed their duties and made an investigation as provided for in rule 10. The Werner court stated, “[i]n view of the presumption that such an investigation was made, and in view of the statement in the copy of the notice to show cause attached to the third amended complaint that such an investigation was in fact made, it should be concluded, upon consideration of the demurrer, in the absence of an allegation that such investigation was not made, that a preliminary or independent investigation was made by the committee before the proceeding was instituted. The proceeding was not instituted by the sending of the [defendant’s] letter of August 14, 1941, to The State Bar. It was instituted, as above noted, by the issuance of the notice to show cause by The State Bar on December 12,

The Werner decision relied on the following statement from 38 Corpus Juris 397: “ ‘Where the prosecuting officer acts on an independent investigation of his own instead of on the statement of facts by the party making the complaint, the latter has not caused the prosecution and cannot be held liable in an action for malicious prosecution.’ ” (Id., at p. 673.)

B. Although Respondents Complained to the State Bar About Appellant, It Was the State Bar That Investigated and Decided to Institute Proceedings. There Is No Allegation That the State Bar Failed to Conduct an Investigation and It Must Be Presumed That One In Fact Occurred

Stanwyck contends that the judicially noticed fact that the State Bar institutes formal disciplinary proceedings after a preliminary investigation does not negate, as a matter of law, respondents’ initiations of the Bar proceedings or the lack of probable cause for such proceedings. Stanwyck urges us to reject the reasoning in Werner, contending that it is incorrect. We disagree.

The Rules^[7] in effect in 1975 when appellant was the subject of the disciplinary proceedings are consistent with the rules in effect when Werner was

Furthermore, even though Rule 19^[8] provides that the complaining witness shall assist in the conduct of the preliminary investigation and provide the committee with documents and evidence in his possession, Rule 19 specifically requires that the preliminary investigation or formal proceedings proceed even if the complaining witness is unwilling or neglectful or even if a settlement, compromise or restitution has been made.

These Rules set forth a procedure for an independent investigation and determination by the State Bar whether to proceed on a complaint. Such was not the case in Hardy v. Vial. Absent an allegation in appellant’s complaint that an investigation did not in fact occur, we must presume as did Werner, that one did occur. As a consequence, we hold that the State Bar, not respondents, initiated, procured or continued the disciplinary proceedings of Stanwyck. Therefore, Stanwyck failed to allege the elements required for a malicious prosecution of an administrative proceeding against respondents. (See Hardy v. Vial, supra, 48 Cal.2d at p. 580, and Restatement Second of Torts, § 680.)

Public Policy Dictates That a Person May Complain to the State Bar of One of Its Members Without Fear of a Subsequent Action for Malicious Prosecution

Appellant relies on Miley v. Harper, supra, 248 Cal.App.2d 463 , as support for its contention that Werner has subsequently been challenged. Miley is factually and procedurally distinguishable and involves an administrative proceeding instituted against a licensed contractor by one Harper, who claimed that Miley performed a job in poor workmanship fashion. The charges filed by the Contractors’ State License Board against Miley were dismissed. Miley thereupon filed an action for malicious prosecution. Subsequently, Harper was successful in moving the trial court for summary judgment.

Stanwyck argues in his reply brief that the State Bar has changed dramatically since the Chronicle decision was decided in 1960 because the members of the Board of Governors and the State Bar panels and review committee consist in significant part of nonlawyer public members. Appellant argues that the infusion of nonlawyer members into the State Bar has somehow vitiated the urgency and reasoning for the public to feel that the legal profession is a closed body. We reject this notion. Even though the present 22 members of the Board of Governors now include 6 lay members and the present State Bar Hearing Department may utilize nonlawyer referees, we fail to see how this limited infusion of nonlawyers on the Board of Governors and in the State Bar panels would dictate a change in public policy.

Stanwyck argues that the modern trend in other jurisdictions is that complaints to attorney disciplinary boards are not subject to an absolute privilege.^[9] Respondent Horne, on the other hand, suggests that a “growing num

In reaffirming Werner, we do not wish to see members of the bar being subject to unfounded complaints by disgruntled former clients or other persons. However, we believe that our opinion is consonant with the continued integrity of the bar. We realize that some members of the bar may be occasionally subject to fraudulent and false complaints; however, these may be best handled by referral of such matters to the appropriate prosecuting agencies with a recommendation that perjury charges be filed. However, if a person who is considering the filing of a complaint with the State Bar against an attorney knows that he or she may be subject to a subsequent malicious prosecution action by the accused attorney, it is reasonable to infer that such knowledge would have an effect on the desire to lodge a complaint in the first instance, regardless of how legitimate the complaint may be. This result clearly would not be in the public interest or in the interest of the bar.

Although an attorney may be occasionally deprived of his right to recover damages in a civil action for the malicious filing of such a complaint without probable cause and based upon false and fraudulent accusations, we are not persuaded that a change in Werner is dictated.^[11] Even persons who would complain to the State Bar in the utmost good faith will face the possibility of defending an action in malicious prosecution if the accused attorney simply alleges in his complaint that the charges were made without probable cause or based upon false or unfounded allegations. If the complainant were required to defend a malicious prosecution action, the damage or injury to public confidence would be done. We are thus not persuaded that any change in the policies set forth in Werner or Chronicle is warranted.

For the foregoing reasons, the order of dismissal entered below is affirmed.

Klein, P. J., and Danielson, J., concurred.

A petition for a rehearing was denied September 20, 1983, and appellant’s petition for a hearing by the Supreme Court was denied November 16, 1983. Kaus, J., was of the opinion that the petition should be granted.