Johnson v. Superior Court

warn one of his patients that her husband had threatened to kill her (which he subsequently did), and failing to adequately supervise an apprentice clinical social worker. Petitioners, who are also psychologists, served as expert consultants to the Boards. After disciplinary hearings were conducted, the Boards determined that there was not adequate cause to discipline plaintiff.

In his first amended complaint, to which petitioners unsuccessfully demurred, plaintiff alleges that petitioners, after reading “limited information furnished to them by the Boards,” rendered expert opinions to the Boards’ enforcement staff in which petitioners “advocated, instigated and encouraged the procurement of the accusations filed against plaintiff Gass by the two Boards even though [petitioners] lacked probable cause for belief that there was a basis for an administrative prosecution against plaintiff Gass.” According to plaintiff, petitioners were unfamiliar with the most recent statutory and case law on “standard of care issues relating to a psychotherapist’s duty to warn third parties of serious threats of violence by a patient,” even though they had held themselves out to be experts in that area.

In their demurrers to the first amended complaint, petitioners argued that plaintiff could not state a cause of action for malicious prosecution because the disciplinary proceedings were filed by the Boards, not petitioners. (Ho-gen v. Valley Hospital (1983) 147 Cal.App.3d 119 , 125 [ 195 Cal.Rptr. 5 ]; Stanwyck v. Home (1983) 146 Cal.App.3d 450 , 461 [ 194 Cal.Rptr. 228 ].) Petitioners also asserted that even if their opinions were instrumental to the filing of the disciplinary proceedings against plaintiff, they were immune from civil liability under section 43.8.

The respondent court, ruling only on the immunity issue, concluded that the immunity provided by section 43.8 was conditional and not absolute. The court overruled the demurrers because the first amended complaint, as pleaded, was sufficient to state a cause of action for malicious prosecution, assuming section 43.8 did not provide absolute immunity.

We conclude the court should have sustained the demurrers, without leave to amend. A demurrer is proper where the complaint fails to state a cause of action (Code Civ. Proc., § 430.10, subd. (e)), or where it discloses a defense that would bar recovery. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial 1 (The Rutter Group 1994) f 7:9.) In the present case, section 43.8 affords petitioners a complete defense to the action. Further, under the rule stated in Hogen and Stanwyck, supra, plaintiff did not state a cause of action for malicious prosecution.

Discussion

“The common law tort of malicious prosecution originated as a remedy for an individual who had been subjected to a maliciously instituted criminal

charge, but in California, as in most common law jurisdictions, the tort was long ago extended to afford a remedy for the malicious prosecution of a civil action.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863 , 871 [ 254 Cal.Rptr. 336 , 765 P.2d 498 ].) In Hardy v. Vial (1957) 48 Cal.2d 577 , 581 [ 311 P.2d 494 , 66 A.L.R.2d 739 ], the court held that an action for malicious prosecution may be founded upon the institution of a civil proceeding before an administrative agency. The Hardy court, relying upon section 680 of the Restatement of Torts, held that “[o]ne who initiates or procures the initiation of civil proceedings against another before an administrative board which has power to take action adversely affecting the legally protected interests of the other, is subject to liability for any special harm caused thereby, if (a) the proceedings are initiated (i) without probable cause to believe that the charge or claim on which the proceedings are based is well founded, and (ii) primarily for a purpose other than that of securing appropriate action by the board, and (b) the proceedings have terminated in favor of the person against whom they are brought.” (48 Cal.2d at p. 580.)

Hogen and Stanwyck placed an additional pleading burden upon the plaintiff in a malicious prosecution case based upon the favorable termination of an administrative proceeding. Those cases held that since it is the administrative body, and not the individual initiating the complaint, which actually files the disciplinary proceeding, a cause of action for malicious prosecution will not lie if the administrative body conducts an independent preliminary investigation prior to initiating disciplinary proceedings.

Even if a plaintiff clears these hurdles by artful pleading, however, section 43.8 provides an absolute defense to the action where the requirements of that section have been met. Section 43.8 provides in pertinent part: “In addition to the privilege afforded by Section 47, there shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any person on account of the communication of information in the possession of such person to any . . . professional licensing board or division, committee or panel of such licensing board . . . when such communication is intended to aid in the evaluation of the qualifications, fitness, character, or insurability of a practitioner of the healing or veterinary arts. The immunities afforded by this section and by Section 43.7 shall not affect the availability of any absolute privilege which may be afforded by Section 47.”

Section 43.8 was amended in 1990 as part of Senate Bill No. 2375, which implemented a comprehensive reform of this state’s system of discipline against medical practitioners. The Legislature declared that the physician discipline system then in effect was “inadequate to protect the health, safety,

Cal.App.3d 119 , 125; Stanwyck v. Home, supra, 146 Cal.App.3d 450 , 461.) In Hogen, a malicious prosecution action by a doctor against two hospitals and another doctor who had provided information leading to disciplinary proceedings against the plaintiff by the Board of Medical Quality Assurance (BMQA), the court held that plaintiffs malicious prosecution action was barred because it was BMQA, not the defendants, which actually initiated the disciplinary proceedings. Stanwyck applied the same rule to State Bar proceedings.

Plaintiff contends Hogen and Stanwyck are factually distinguishable because in Hogen, the BMQA file, of which the Hogen court took judicial notice, revealed that BMQA conducted its own investigation prior to filing disciplinary charges, and Stanwyck involved proceedings peculiar to the State Bar.

Whether or not judicial notice should be taken of the Boards’ files is irrelevant to this case, because plaintiff’s complaint demonstrates on its face that petitioners were part of an independent investigation conducted by the Boards and the purpose of petitioners’ involvement was to aid that investigation. Even if we accept as true plaintiff’s allegations that petitioners “instigated” the disciplinary charges against him, the fact remains that it is the Boards themselves which ultimately determined whether the charges should be filed.

Disposition

Let a peremptory writ of mandate issue directing the respondent court to vacate its order of February 14, 1994, overruling petitioners’ demurrer to plaintiff’s first amended complaint, and enter a new and different order sustaining the demurrer without leave to amend.

Turner, P. J., and Godoy Perez, J., concurred.

A petition for a rehearing was denied July 11, 1994, and the petition of real party in interest for review by the Supreme Court was denied September 8, 1994.