Bradley v. Hartford Accident & Indemnity Co.

Opinion

In this consolidated action plaintiffs appeal from the judgments of dismissal entered after respondents’ demurrers to the second amended complaints (“Complaints”) were sustained without leave to amend.

The present defamation action grew out of a personal injury suit brought by one Cecil Wyatt (“Wyatt action”) against the Truckee-Carson Irrigation

According to the allegations of the first causes of action of the Complaints, during and after the pendency of the Wyatt action respondents, The Hartford Accident and Indemnity Company (“Hartford”) and Donald H. Dewberry (“Dewberry”), acting jointly and in conspiracy, induced one Ayala, a prisoner in a California jail, to make false and defamatory statements which, it is alleged, maliciously charged that appellants colluded and prevailed upon Broyles to give false testimony in return for which he was dropped from the Wyatt suit; and, moreover, that appellants manufactured evidence, suborned perjury, and conducted themselves in an unprofessional and illegal manner in the Wyatt action. It is further alleged that these defamatory statements were uttered orally outside of court and not in the course of any legal proceedings to third persons who had no interest in the Wyatt action. It is also affirmatively alleged that respondent Hartford, an insurance company, was not a party to, nor was Ayala either a party or a witness in, the Wyatt action, and that respondent Dewberry was not an attorney of record in that action.

The second causes of action of the Complaints allege that while the Wyatt, action was pending, pursuant to a conspiracy to defame appellants, respondents caused certain extrajudicial documents, not appropriately a part of the judicial proceedings relating to the Wyatt action, to be filed with both the Nevada Supreme Court and the district court where the case was tried; that these documents were filed for the sole purpose of having the defamatory statements contained therein quoted and republished by the Nevada news media; and that in furtherance of this purpose respondents falsely and maliciously represented to certain newspaper and television reporters that the documents, which had been filed with the courts, proved that appellants had collusively prevailed upon Broyles to give false and perjured testimony favorable to Wyatt, and that appellants were therefore guilty of suborning perjury, manufacturing evidence, and conducting themselves in an unprofessional and illegal manner in the Wyatt action.

In the third and fourth causes of action of the Echeverría second amended

The California law is in complete accord with these principles. Thus, under Civil Code, section 47, subdivision 2, a publication or broadcast is privileged only on certain occasions, namely, in (1) legislative or (2) judicial proceedings, or (3) other official proceedings authorized by law. Although defamatory publications made in the course of a judicial proceeding are absolutely privileged even if made with actual malice (Albertson v. Raboff, supra, at p. 379; Gosewisch v. Doran (1911) 161 Cal. 511 , 513-515 [ 119 P. 656 ]), the absolute privilege attaches only to a publication that has a reasonable relation to the action, is permitted by law and, more importantly, if it is made to achieve the objects of the litigation. If these requirements are met, the publication is absolutely privileged even though made outside the courtroom and no function of the court or its officers is invoked (Albertson v. Raboff, supra, at p. 381; Smith v. Hatch, supra, at p. 45). And although the cases stress that to be privileged under subdivision 2 of section 47 the defamatory matter need not be relevant, pertinent or material to any issue before the court, it is an absolute necessity that the publication have some connection or logical relation to the judicial proceeding (Thornton v. Rhoden (1966) 245 Cal.App.2d 80 , 90 [ 53 Cal.Rptr. 706 , 23 A.L.R.3d 1152 ]; Jordan v. Lemaire (1963) 222 Cal.App.2d 622 , 625 [ 35 Cal.Rptr. 337 ]; Lewis v. Linn (1962) 209 Cal.App.2d 394 , 399 [ 26 Cal.Rptr. 6 ]; Rest., Torts, §§ 585-589). The California cases likewise delineate the circle of persons to whom the judicial privilege is applicable. In harmony with Restatement of Torts, sections 585-589, the privilege has been held to extend to judges and other official officers (§ 585; Lewis v. Linn, supra); attorneys (§ 586; Friedman v. Knecht (1967) 248 Cal.App.2d 455 [ 56 Cal.Rptr. 540 ]; Jordan v. Lemaire, supra); parties (§ 587; Albertson v. Raboff, supra, at pp. 378-379); witnesses and prospective witnesses (§ 588; Ascherman v. Natanson (1972) 23 Cal.App.3d 861 , 865 [ 100 Cal.

Before examining the allegations of the Complaints, we must also add that by statutory mandate the allegations of a complaint must be liberally construed with a view to substantial justice between the parties (Code Civ. Proc., § 452). This precept is fully applicable to a complaint in a defamation action (Ingraham v. Lyon (1894) 105 Cal. 254 , 257 [ 38 P. 892 ]; Farr v. Bramblett (1955) 132 Cal.App.2d 36 , 48 [ 281 P.2d 372 ]). In such an action, as in any type of action, the essence is fairness in pleading in order to give the defendant sufficient notice of the cause of action stated against him so that he will be able to prepare his case (Bauer v. County of Ventura (1955) 45 Cal.2d 276 , 291 [ 289 P.2d 1 ]; Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50 , 63 [ 35 Cal.Rptr. 652 ]). A party is no longer required to plead with common law exactness, and less particularity is needed where it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy (Simons v. County of Kern (1965) 234 Cal.App.2d 362 , 367 [ 44 Cal.Rptr. 338 ]; Schessler v. Keck (1954) 125 Cal.App.2d 827 , 835-836 [ 271 P.2d 588 ]). It is unnecessary and improper to allege evidentiary facts (Taylor v. Oakland Scavenger Co. (1938) 12 Cal.2d 310 , 317 [ 83 P.2d 948 ]; Wise v. Southern Pacific Co., supra, at p. 62), and plaintiff is not required to plead negative facts to anticipate a defense (Stowe v. Fritzie Hotels, Inc. (1955) 44 Cal.2d 416 , 422 [ 282 P.2d 890 ]; Jaffe v. Stone (1941) 18 Cal.2d 146 , 158-159 [ 114 P.2d 335 , 135 A.L.R. 775 ]; Farr v. Bramblett, supra, at p. 48). Furthermore, where a cause of action for civil conspiracy to defame the plaintiff is pleaded, explicit details concerning the manner in which the defendants conspired to publish the alleged defamatory matter are not required. If the plaintiff’s complaint sufficiently apprises the defendants of the character and type of the facts and circumstances upon which he relies to establish the conspiracy, the complaint is not vulnerable to a demurrer (Schessler v. Keck, supra, at p. 833). Finally, we note that under well recognized law, for the purpose of testing the demurrer all material and issuable facts properly pleaded must be regarded as true (Flores v. Arroyo (1961) 56 Cal.2d 492 , 497 [ 15 Cal.Rptr. 87 , 364 P.2d 263 ]; Pettitt v. Levy (1972) 28 Cal.App.3d 484 , 487 [ 104 Cal.Rptr. 650 ]),

When construed in light of the foregoing principles, it becomes

It is conceded that, due to filing the documents, with the courts, “some relationship” can be established between the publication of the contents of these documents and the action itself. However, as indicated before, the fulfillment of this requirement, standing alone, does not sustain an absolute privilege. This is particularly true in the instant case where there is nothing contained in the pleadings to suggest that the publication was made to achieve the objects of the litigation. On the contrary, it affirmatively appears in the Complaints that the documents in question were filed as a part of a conspiracy for the sole purpose of having the defamations contained therein republished by the news media, that is, to bring the defamatory matter within the protective shield of the absolute privilege and then to spread it with impunity. It is easily discernible what result would ensue should we condone such an apparent ruse by providing absolute immunity to the resourceful slanderer. The privileged defamation, now a barely tolerated exception, would gain full-fledged legitimization. All that the slanderer would have to do to avoid the consequences of his evil act would be to file the defamatory matter with the court first, then republish it as an absolutely privileged matter to the news media or to the public at large, thereby converting the litigation in the court into litigation in the press or in the street.

The above consideration all the more compels the conclusion that in determining whether or not the defamatory publication should be accorded an absolute privilege, special emphasis must be laid on the requirement that it be made in furtherance of the litigation and to promote the interest of justice. Only if this requirement has been satisfied, is it appropriate for the courts to define liberally the scope of the term “judicial proceeding” and the persons who should be regarded as litigants or other participants.

Finally, we observe that the fact that a defamatory statement was initially protected by an absolute privilege because it was uttered on a privileged occasion by persons who are covered by the privilege does not include a full scale, blanket authorization to republish the same on a non-privileged occasion to persons to whom the privilege is not applicable. Thus, in Kennedy v. Cannon (1962) 229 Md. 92 [ 182 A.2d 54 ], the attorney of record repeated to the newspapers certain defamatory matters which were originally uttered during the judicial proceeding and were absolutely privileged. Holding that the original privilege did not extend to the extrajudicial statements, the court first pointed out that counsel is protected for defamatory words in a judicial proceeding and the words thus spoken are not actionable even if they would be actionable if spoken elsewhere. However, the court underscored that the absolute privilege will not attach to counsel’s extrajudicial publications related to the litigation which are made outside the purview of the judicial proceeding, nor will the attorney be protected by the absolute privilege as to actionable words spoken before persons in no way connected with the proceeding (Robinson v. Home Fire & Marine

We conclude that respondents’ extrajudicial statements which are the sole object of the present appeal were not absolutely privileged under existing law. Nor does the public policy, which tolerates rather than hails the occasional impunity of a slanderer, mandate the invocation of privilege, either. According to the allegations of the Complaints which must be considered true, the defamatory statements here were not uttered on a privileged occasion, nor did they aim at securing the litigants as other participants the utmost freedom of access to the court. But most of all, they were not made to achieve the objects of the litigation and to promote the unfettered administration of justice. Under these circumstances we are constrained to hold that the allegations in the Complaints fail to disclose upon their face that the defamatory publications were made in a judicial proceeding within the meaning of Civil Code, section 47, subdivision 2. Consequently, the sustaining of respondents’ demurrers without leave to amend on the ground that the Complaints failed to state a cause of action constituted reversible error. Accordingly, the judgments below must be, and each is, reversed.

Taylor, P. J., and Rouse, J., concurred.