Mulder v. Pilot Air Freight

Filed 2/14/02
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or
ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
ROBERT P. MULDER,
Plaintiff and Appellant,
v.
PILOT AIR FREIGHT et al.,
Defendants and Respondents.
No. B146633
(Super. Ct. No. BC212980)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Alexander H. Williams, III, Judge. Affirmed in part and reversed in part.
Ezra Brutzkus Gubner, Robert Ezra and G. Michael Jackson for Plaintiff and
Appellant.
Bragg, Short, Serota & Kuluva and Sydnee R. Singer for Defendants and
Respondents.
______________________

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We are asked to decide whether the immunity provided by Civil Code
section 47, subdivision (b) (section 47(b)) is absolute or qualified when applied to
a report made to the police. We follow the weight of authority and conclude that
the immunity is absolute. But we also conclude the trial court erred in denying
plaintiff, Robert P. Mulder, leave to amend to add a cause of action for malicious
prosecution, which is not barred by section 47(b).
FACTUAL AND PROCEDURAL SUMMARY
This is a suit between Mulder and Pilot Air Freight and one of its employees
(Pilot). On its own motion, the trial court converted Pilot’s motion for summary
judgment to a motion for judgment on the pleadings because the sole issue was one
of law: whether the privilege under section 47(b) is absolute or qualified. (See
Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811,
1817.) “A motion for judgment on the pleadings, like a general demurrer, tests the
allegations of the complaint or cross-complaint, supplemented by any matter of
which the trial court takes judicial notice, to determine whether plaintiff or cross-
complainant has stated a cause of action. (Briggs v. Lawrence (1991) 230
Cal.App.3d 605, 610 [281 Cal.Rptr. 578].) Because the trial court’s determination
is made as a matter of law, we review the ruling de novo, assuming the truth of all
material facts properly pled. (Berry v. City of Santa Barbara (1995) 40
Cal.App.4th 1075, 1082 [47 Cal.Rptr.2d 661].)” (Leko v. Cornerstone Bldg.
Inspection Service (2001) 86 Cal.App.4th 1109, 1114.) We therefore confine our
review to the allegations of the complaint.
Mulder dealt in salvage. In 1997, Erick Moe, who purchased salvage,
bought a number of palettes and boxes of salvage from Huy Nguyen, District
Manager of Pilot. In 1998, Mr. Moe arranged to bring part of the salvage to
Mulder’s warehouse. They agreed that Mulder would sell the salvage for a
commission. When Mulder sorted through the salvage delivered by Moe, he

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discovered a flight recorder with Patlong Aircraft markings, containing a bill of
lading with the Patlong telephone number. Mulder contacted Patlong and was told
that the recorder had been lost a year before. Patlong expressed interest in getting
the recorder and told Mulder to contact Pilot and Same Day Right of Ways, who
had shipped the parts to Pilot. Mulder contacted both companies and neither
expressed any interest in the recorder. He passed this information on to Patlong.
Mulder was contacted by defendant Steve Covert, who said he worked for
Pilot. Covert asked Mulder how much he wanted for the recorder. Mulder asked
for $5,000 and was told by Covert that Pilot would pay $500. Over the next
several months, negotiations continued between Mulder and Covert. The two
finally agreed on a price of $1,000, subject to approval by Pilot. Neither Pilot nor
Covert told Mulder that the recorder was stolen, lost, or that it belonged to anyone
else.
In October 1998, Pilot filed a report with the Los Angeles Police
Department, stating that the flight recorder was stolen and in Mulder’s possession.
Pilot did not tell the police that it sold the recorder through Nguyen to Moe.
Mulder was not told about the stolen property report. In January 1999, Covert
again offered to buy the flight recorder. Two undercover Los Angeles Police
Officers entered Mulder’s offices on January 6, 1999. They handed him a check
for $1,000 (payable to a Robert Evans). They left, then returned with eight other
officers and handcuffed and searched Mulder in front of employees and a
customer. He was arrested for receiving stolen property.
The criminal case against Mulder was dismissed. He then sued Pilot and
Covert for false imprisonment and intentional infliction of emotional distress.
Mulder alleged that the Pilot defendants made the police report in bad faith and
with malice.

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Pilot moved for summary judgment or, in the alternative, summary
adjudication. Among other arguments, Pilot contended the action was barred by
the absolute privilege of section 47(b). Mulder opposed the motion. At the
hearing, the trial court ruled that the motion would be converted to a motion for
judgment on the pleadings because the question was very limited--whether the
immunity for filing a police report is qualified or absolute under section 47(b).
The trial court indicated a belief that the privilege is absolute, but invited further
briefing by the parties. After further briefing, and a second hearing, the trial court
said it would rule that the privilege is absolute, entitling defendants to judgment,
but discussed Mulder’s request for leave to amend to allege a cause of action for
malicious prosecution. At first, the trial court seemed inclined to grant leave to
amend, but after argument, it granted judgment on the pleadings without leave to
amend.
At a later hearing to resolve a dispute about the wording of the judgment, the
trial court expressed a concern that leave to amend should have been granted. But
by that time, Mulder had prepared a notice of appeal, and the trial court was
concerned that it was without jurisdiction to grant leave to amend. With the
approval of the trial court, the parties stipulated that the court did not have
jurisdiction to modify the original order granting judgment on the pleadings
without leave to amend.
DISCUSSION
I
At oral argument, appellant argued that a cause of action for false
imprisonment does not implicate the section 47(b) privilege because, unlike
defamation, it does not involve a communication. Where a defendant personally
confines a plaintiff, section 47(b) does not apply. That is not this case. Here, we

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have an arrest based on Pilot’s police report. In California, a communication
which results in arrest is privileged under section 47(b).
Appellant attempts to distinguish between a communication to the
authorities which results in an arrest, and conduct instigating or participating in the
arrest. He contends the former comes within the absolute privilege of section
47(b), but the latter does not. The complaint alleges that Pilot not only filed a
police report alleging that appellant was dealing in stolen merchandise, but that its
employee Covert instigated and participated in the police sting which led to
appellant’s arrest.
Appellant relies on the Restatement Second of Torts for this argument. The
Restatement explains the concept of instigation in comment c to section 45A:
“Instigation consists of words or acts which direct, request, invite or encourage the
false imprisonment itself. In the case of an arrest, it is the equivalent, in words or
conduct, of ‘Officer, arrest that man!’ It is not enough for instigation that the actor
has given information to the police about the commission of a crime, or has
accused the other of committing it, so long as he leaves to the police the decision
as to what shall be done about any arrest, without persuading or influencing them.
Likewise it is not an instigation of a false arrest where the actor has requested the
authorities to make a proper and lawful arrest, and has in no way invited or
encouraged an improper one, or where he has requested an arrest at a time when it
would be proper and lawful, and it is subsequently made at a time when it has
become improper.” (Rest.2d Torts, § 45A, com. c, p. 70.) The Restatement
supports the conclusion we reach: the section 47(b) privilege applies because the
conduct of the defendants was based on their report to the police, clearly a
communication within the meaning of the privilege.
Appellant’s counsel stated that a defendant who takes action that results in
an unjustified arrest commits false imprisonment. As we have discussed, such

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conduct does not constitute “instigation” unless the defendant personally effects or
directs the arrest. Conduct short of that may be the basis for liability on some other
theory, such as malicious prosecution, but it is not false imprisonment.
The principal issue before us is whether the applicable privilege under
section 47(b) is absolute or qualified. There is a split of California authority and
the California Supreme Court has the issue before it (Balser v. Wells Fargo Bank,
N.A. (Dec. 19, 2001, S101833)). Section 47(b) provides that a “privileged
publication or broadcast is one made: . . . (3) in any other official proceeding
authorized by law, . . .” This provision is essentially identical to the previous
version of the privilege, Civil Code section 47, subdivision (2).
The continuity of the statutory language is important to our analysis. In
1943, the California Supreme Court concluded that the privilege under former
section 47, subdivision (2) was absolute, although the publication at issue was
given maliciously and with knowledge of its falsity. (Washer v. Bank of America
(1943) 21 Cal.2d 822, 832.) The Supreme Court cited the Restatement of Torts:
“‘A party to a private litigation or a private prosecutor or defendant in a criminal
prosecution is absolutely privileged to publish false and defamatory matter of
another in communications preliminary to a proposed judicial proceeding or in the
institution of or during the course and as a part of a judicial proceeding in which he
participates, if the matter has some relation thereto.’ (Vol. 3, sec. 587.)” (21
Cal.2d at p. 832.) There was no absolute privilege in Washer because the
statements in issue were made to the press, rather than in a report to a prosecuting
attorney or other public official “preliminary to a proposed criminal proceeding.
(Rest. Torts, sec. 587, comment b.)” (Ibid.)
In 1972, the court in King v. Borges (1972) 28 Cal.App.3d 27, applied the
absolute privilege of Civil Code section 47, subdivision (2) to a cross-complaint
for libel based on a letter to the Division of Real Estate requesting investigation of

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a broker who had failed to return a deposit on a land sale. Citing Washer v. Bank
of America, supra, 21 Cal.2d 822, the court identified the public policy supporting
the absolute privilege: “The importance of providing citizens free and open access
to governmental agencies for the reporting of suspected illegal activity outweighs
the occasional harm that might befall a defamed individual. Thus the absolute
privilege is essential.” (28 Cal.App.3d at p. 34; see also Imig v. Ferrar (1977) 70
Cal.App.3d 48, 55-57 [absolute privilege of Civil Code section 47, subdivision (2)
applies to action based on communications to the Los Angeles Police Department
concerning misconduct by one of its officers]; Williams v. Taylor (1982) 129
Cal.App.3d 745, 753-754 [report to police requesting investigation of possible
criminal activity by plaintiff was absolutely privileged under Civil Code section
47, subdivision (2), as part of official proceeding, hence cannot be defeated by a
showing of malice]; Cote v. Henderson (1990) 218 Cal.App.3d 796 [similar].)
In Silberg v. Anderson (1990) 50 Cal.3d 205, the Supreme Court revisited
the former Civil Code section 47, subdivision (2) privilege. While the factual
setting of Silberg is distinguishable, involving an attorney representing a wife in a
dissolution proceeding, the Supreme Court’s explication of the policies underlying
the absolute privilege is instructive. “The principal purpose of section 47(2) is to
afford litigants and witnesses [citation] the utmost freedom of access to the courts
without fear of being harassed subsequently by derivative tort actions.
[Citations.]” (Id. at p. 213.) Continuing, the court explained: “To effectuate its
vital purposes, the litigation privilege is held to be absolute in nature. (Ribas v.
Clark [(1985)] 38 Cal.3d [355,] 364; Albertson v. Raboff [(1956)] 46 Cal.2d [375,]
381 [and 4 other cases]. In Albertson, Justice Traynor, speaking for the court,
reasoned that the policy of encouraging free access to the courts was so important
as to require application of the privilege to torts other than defamation. . . . The
only exception to application of section 47(2) to tort suits has been for malicious

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prosecution actions. [Citations.] Malicious prosecution actions are permitted
because ‘[t]he policy of encouraging free access to the courts . . . is outweighed by
the policy of affording redress for individual wrongs when the requirements of
favorable termination, lack of probable cause, and malice are satisfied.’
[Citation.]” (Silberg v. Anderson, supra, 50 Cal.3d at pp. 215-216.)
“That the privilege is absolute is also confirmed by the statutory language.
As amended in 1927 by the addition of the ‘divorce proviso,’ section 47(2)
provided that an allegation involving correspondents in pleadings and affidavits
filed in divorce actions is not privileged unless stated under oath, without malice,
and on reasonable grounds. [Citation.] By negative implication, therefore,
statements published in proceedings other than divorce actions may be malicious
and still fall within the mantle of protection provided by the privilege. Were it
otherwise, the ‘without malice’ language in the ‘divorce proviso’ would be mere
surplusage. Since we presume that the Legislature does not engage in idle acts
[citations], it must be concluded that the ‘without malice’ requirement applies only
to those allegations against correspondents published in the pleadings and
affidavits filed in dissolution proceedings, and that otherwise the Legislature
intended section 47(2) to apply to all publications, irrespective of their
maliciousness.” (Silberg v. Anderson, supra, 50 Cal.3d at p. 216.)
The Supreme Court recognized “that the disallowance of derivative tort
actions based on communications of participants in an earlier action necessarily
results in some real injuries that go uncompensated. But, as stated in Kachig v.
Boothe [(1971)] 22 Cal.App.3d [626,] 641, quoting Prosser, Law of Torts (3d ed.
1964) page 797, that is the ‘“price that is paid for witnesses who are free from
intimidation by the possibility of civil liability for what they say.”’” (Silberg v.
Anderson, supra, 50 Cal.3d at p. 218.)

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The Silberg court went on to acknowledge other possible remedies which
may help deter injurious publications during litigation. Examples include criminal
prosecution for perjury, and penalties against attorneys. (Silberg v. Anderson,
supra, 50 Cal.3d at pp. 218-219.)
Several months after Silberg was decided, Division One of the Fourth
District Court of Appeal decided Fenelon v. Superior Court (1990) 223
Cal.App.3d 1476. John Dunbar sued the Fenelons for defamation, based on the
allegation that they had induced a third party to make a false police report that
Dunbar had solicited Dr. Fenelon’s murder. The Fenelons sought a writ of
mandate after the trial court overruled their demurrer to the complaint. They relied
upon Williams v. Taylor (1982) 129 Cal.App.3d 745 for the proposition that the
absolute privilege of Civil Code section 47, subdivision (2) should apply.
(Fenelon v. Superior Court, supra, 223 Cal.App.3d at p. 1479.) The majority, in a
widely criticized decision, held that a police report concerning suspected criminal
activity is accorded only a qualified privilege because a police report is not an
official proceeding within the meaning of Civil Code section 47, subdivision (2).
In reaching this conclusion, the court looked to authorities from a number of other
jurisdictions, rather than to California cases. (Fenelon, supra, at pp. 1482-1483.)
A dissenting opinion by Justice Benke argued that under Silberg v. Anderson,
supra, 50 Cal.3d 205 and Williams v. Taylor, supra, 129 Cal.App.3d 745, the
absolute privilege should apply. (Fenelon v. Superior Court, supra, 223
Cal.App.3d at p. 1484.) Every subsequent reported California case has agreed with
the Fenelon dissent rather than the majority opinion.
In our case, the trial court placed particular reliance on Hunsucker v.
Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498. In that case, Hunsucker was
detained by the police after a hotel housekeeping employee reported to hotel
management that she had seen a woman with a gun in Hunsucker’s hotel room.

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The hotel manager reported this incident to the police. Hunsucker and his wife
sued the Hilton for false imprisonment, assault and battery, and deprivation of civil
rights. The trial court granted summary judgment based on the privilege of section
47(b).
On appeal, plaintiffs argued the absolute privilege should be confined to
causes of action for defamation, or the closely related torts of intentional infliction
of emotional distress, misrepresentation, or invasion of privacy, and should not
apply to a case in which the plaintiff suffered a loss of liberty as a result of a false
report. They also argued that report to police is not “any other proceeding
authorized by law” within the meaning of section 47(b).
The Hunsucker court recognized that Fenelon v. Superior Court, supra, 223
Cal.App.3d 1476 supports the view that a police report is not within section 47(b).
(Hunsucker v. Sunnyvale Hilton Inn, supra, 23 Cal.App.4th at p. 1502.) But it
held: “However, the weight of authority in California, the very articulate dissent in
Fenelon by Justice Benke, and what we believe is the better view, holds that
reports made by citizens to police regarding potential criminal activity fall within
the section 47 absolute privilege. [Citations.]” (Hunsucker, supra, 23 Cal.App.4th
pp. 1502-1503.) The court followed Justice Benke’s dissent in which she observed
that the privilege applies to statements made preliminary to or in preparation for
either civil or criminal proceedings. (Hunsucker, supra, at p. 1504.)
Hunsucker cited the safeguards provided in both the California and United
States Constitutions for those detained by the police. It agreed with the court in
Williams v. Taylor, supra, 129 Cal.App.3d 745, “that the importance of free and
open access to the police to report suspected criminal activity outweighs the
occasional harm that might befall a defamed individual.” (Hunsucker v. Sunnyvale
Hilton Inn, supra, 23 Cal.App.4th at p. 1504.) It concluded that the absolute
privilege of section 47(b) applies.

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Turning to the Hunsuckers’ argument that the hotel should be held liable for
the actions of the police, the court had this to say: “[T]he Hilton manager’s
conduct in reporting the gun sighting to police was absolutely privileged, as
discussed above. Additionally, ‘“[a] . . . person does not become liable for false
imprisonment when in good faith he gives information--even mistaken
information--to the proper authorities though such information may be the
principal cause of plaintiff’s imprisonment.”’ (Du Lac v. Perma Trans Products,
Inc. (1980) 103 Cal.App.3d 937, 941 . . . .” (Hunsucker v. Sunnyvale Hilton Inn,
supra, 23 Cal.App.4th at p. 1504.) In this paragraph, the court recognized the
absolute privilege of section 47(b). The additional statement regarding good faith
is not necessary to the opinion, and relies on Du Lac, which cannot be reconciled
with Silberg v. Anderson, supra, 50 Cal.3d 205. We therefore reject Mulder’s
argument that based on this portion of Hunsucker, good faith must be shown to
avoid liability under section 47(b). This reading of Hunsucker ignores the clear
language of the opinion stating that there is an absolute privilege under section
47(b) for reports made to the police. Subsequent cases support this view.
Passman v. Torkan (1995) 34 Cal.App.4th 607, followed Hunsucker, Cote
and Williams. It held the absolute privilege of section 47(b) applied to bar an
action by two attorneys against the defendant, who had written to the district
attorney urging their prosecution. The court rejected plaintiffs’ argument that only
a qualified privilege should apply and that malice would destroy the privilege. The
court observed: “To date no reported appellate decision has followed the
reasoning and rationale of Fenelon.” (Id. at p. 618.) The court followed the
dissent in Fenelon and the line of decisions represented by Washer and Williams in
concluding that reports made to police officers are within section 47(b). (See also
Johnson v. Symantec Corporation (N.D. Cal. 1999) 58 F.Supp.2d 1107 [finding
weight of California authority is that privilege is absolute and criticizing Fenelon];

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see also Fremont Comp. Ins. Co. v. Superior Court (1996) 44 Cal.App.4th 867,
875 [following Passman and Hunsucker in declining to follow Fenelon: “As
interpreted in a number of cases, section 47 protects persons who report potential
criminal activity to the police or local prosecutor from lawsuits, even if the report
is made with malice.”].)
Finally, in Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 495-496, we
concluded that the Williams line of cases upholding an absolute privilege for
reports to police is the better reasoned approach. The court declined to follow two
cases also cited here by Mulder: Devis v. Bank of America (1998) 65 Cal.App.4th
1002, 1007-1008 and Du Lac v. Perma Trans Products, Inc., supra, 103
Cal.App.3d 937, 941: “We recognize that in Devis v. Bank of America (1998) 65
Cal.App.4th 1002, 1007-1008 [77 Cal.Rptr.2d 238], the court cited Williams and
its progeny with approval, but suggested in dicta that false reports to the police are
subject only to the qualified privilege, citing primarily Turner v. Mellon (1953) 41
Cal.2d 45, 48 [257 P.2d 15], and Du Lac v. Perma Trans Products, Inc.[,supra,]
103 Cal.App.3d 937, 941 [163 Cal.Rptr. 335]. However, these cases, which
involve tort claims of false arrest and false imprisonment, predate Silberg, in which
our Supreme Court indicated the broad scope of the absolute privilege (Silberg v.
Anderson, supra, 50 Cal.3d at p. 216), and thus they are not persuasive on the issue
before us.” (Id. at pp. 495-496, fn. 6.)
We agree with the Beroiz court’s analysis of Devis and the cases on which it
relies. In Devis, the court recognized the weight of authority in the state is contrary
to Fenelon v. Superior Court, supra, 223 Cal.App.3d 1476, and holds that a citizen
report to the police regarding potential criminal activity is a communication which
falls within section 47(b). (Devis v. Bank of America, supra, 65 Cal.App.4th at
pp. 1007-1008.) We decline to follow the dicta in Devis suggesting that the
privilege is qualified, and instead follow the majority of cases that have held it is

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absolute and irrespective of malice. This conclusion is not altered by Mulder’s
reliance on Harden v. San Francisco Bay Area Rapid Transit Dist. (1989) 215
Cal.App.3d 7 and Ramsden v. Western Union (1977) 71 Cal.App.3d 873. In each
case, plaintiffs were arrested because of a report made by the defendants. Neither
opinion discusses section 47(b) and hence holds little if any relevance to our
discussion. For the same reason, we are not persuaded by Mulder’s reliance on
Justice Grodin’s concurring opinion in Pool v. City of Oakland (1986) 42 Cal.3d
1051. Section 47(b) was not discussed by the majority. Justice Grodin’s opinion
discusses a conditional privilege for reporting suspected criminal activity to the
police, but does not cite section 47(b) and does not discuss Washer v. Bank of
America, supra, 21 Cal.2d 822 and the other cases we have discussed which were
decided before Pool.
The trial court properly granted judgment on the pleadings on the ground
that the absolute privilege of section 47(b) bars the action.
II
Mulder argues he should have been granted leave to amend to allege a cause
of action for malicious prosecution, which is not barred by section 47(b). We
agree. “Where a motion for summary judgment is in effect a motion for judgment
on the pleadings, the court may grant a plaintiff leave to amend the complaint.
[Citation.]” (Stolz v. Wong Communications Limited Partnership, supra, 25
Cal.App.4th at p. 1817.) The record reveals that the trial court denied leave to
amend because of confusion about the proper procedure, rather than on the merits.
We therefore decline to address the merits in the first instance. On remand,
Mulder may move to amend to add a malicious prosecution cause of action.

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DISPOSITION
The judgment that the action is barred by section 47(b) is affirmed. The
denial of leave to amend is reversed and the matter remanded as directed in the
opinion. Each side is to bear its own costs on appeal.
NOT TO BE PUBLISHED.
EPSTEIN, Acting P.J.
We concur:
HASTINGS, J.
CURRY, J.

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