M.K. v. Smith

Filed 6/12/03 M.K. v. Smith CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or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 TWO
M.K., a Minor, etc.,
Defendant and Appellant,
v.
JAMES SMITH,
Plaintiff and Respondent.
B160120
(Super. Ct. No. MC013256)
APPEAL from a judgment of the Superior Court of Los Angeles County, Frank Y.
Jackson, Judge. Reversed and remanded.
Veatch, Carlson, Grogan & Nelson, Mark A. Weinstein, Craig H. Bell and Steve
R. Segura for Defendant and Appellant.
Stephen C. Moore for Plaintiff and Respondent.
________________________

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Respondent, James Smith, brought a defamation action against appellant M.K., a
minor. Smith alleged that M.K., at eight years of age, falsely reported to the police that
Smith had sexually molested her. When M.K.’s Code of Civil Procedure section 425.161
special motion to strike (anti-SLAPP2 motion) was denied, this appeal followed. We
hold that section 425.16 applies to Smith’s defamation action, and that because the
litigation privilege set forth in Civil Code section 47, subdivision (b) (Civil Code section
47(b)) bars Smith’s defamation lawsuit, he cannot demonstrate a reasonable probability
of success on the merits. We therefore conclude the trial court erred in denying M.K.’s
anti-SLAPP motion. Accordingly, we reverse.
I. FACTUAL AND PROCEDURAL BACKGROUND
Smith alleges that in November and December 2000, M.K., then eight years of
age, falsely accused Smith of “performing various sexually deviant acts” upon her
person. These statements were made to the police. It is also alleged that at the time M.K.
made each of the statements she knew them to be false. As a result of M.K’s allegedly
false accusations, Smith was arrested, booked and jailed.3 On January 10, 2001, the
1 All further statutory references will be to the Code of Civil Procedure unless
otherwise indicated.
2 “SLAPP” stands for “strategic lawsuit against public participation.” (Ketchum v.
Moses (2001) 24 Cal.4th 1122, 1127.)
3 To the complaint Smith attached police reports and other documents describing
relevant events.

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criminal complaint was dismissed pursuant to Penal Code section 1385.4 On January 7,
2002, Smith filed suit against M.K. for defamation.5
M.K. filed an anti-SLAPP motion, urging that Smith’s lawsuit, based on M.K.’s
responses to questions posed to her by police officers investigating reports of child
molestations by Smith, was the type of SLAPP lawsuit that can have a chilling effect on
M.K.’s exercise of her constitutional rights to seek governmental redress, and which the
anti-SLAPP statute was specifically designed to safeguard. M.K. also argued that
because the defamation action was based on her statements to investigating officers,
those statements were absolutely privileged under Civil Code section 47(b), such that
Smith could not establish the “probability of success” necessary to avoid the striking of
his complaint.
The trial court, relying primarily on Begier v. Strom (1996) 46 Cal.App.4th 877
(Begier), denied M.K.’s anti-SLAPP motion. In so doing, the court held, in essence, that
minors who report sexual abuse are permissive reporters under Penal Code section
11166, subdivision (e)6 of the Child Abuse and Neglect Reporting Act (Act ) (Pen. Code,
§ 11164 et seq.), and that the specific privileges set forth within Penal Code section
11172, subdivision (a)7 of the Act override all other privileges, including those contained
4 Penal Code section 1385, subdivision (a) provides that “[t]he judge or magistrate
may, either of his or her own motion or upon the application of the prosecuting attorney,
and in furtherance of justice, order an action to be dismissed. The reasons for the
dismissal must be set forth in an order entered upon the minutes. No dismissal shall be
made for any cause which would be ground of demurrer to the accusatory pleading.”
5 The complaint set forth three causes of action for slander, based on three different
publications.
6 Penal Code section 11166, subdivision (e) provides: “Any other person who has
knowledge of or observes a child whom he or she knows or reasonably suspects has been
a victim of child abuse or neglect may report the known or suspected instance of child
abuse or neglect to an agency specified in Section 11165.9.”
7 Penal Code section 11172 provides as follows: “No mandated reporter shall be
civilly or criminally liable for any report required or authorized by this article. Any other

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within Civil Code section 47(b). In other words, M.K., as a permissive reporter, was
person reporting a known or suspected instance of child abuse or neglect shall not incur
civil or criminal liability as a result of any report authorized by this article unless it can
be proven that a false report was made and the person knew that the report was false or
was made with reckless disregard of the truth or falsity of the report, and any person who
makes a report of child abuse or neglect known to be false or with reckless disregard of
the truth or falsity of the report is liable for any damages caused. No person required to
make a report pursuant to this article, nor any person taking photographs at his or her
direction, shall incur any civil or criminal liability for taking photographs of a suspected
victim of child abuse or neglect, or causing photographs to be taken of a suspected victim
of child abuse or neglect, without parental consent, or for disseminating the photographs
with the reports required by this article. However, this section shall not be construed to
grant immunity from this liability with respect to any other use of the photographs.
“(b) Any person, who, pursuant to a request from a government agency
investigating a report of suspected child abuse or neglect, provides the requesting agency
with access to the victim of a known or suspected instance of child abuse or neglect shall
not incur civil or criminal liability as a result of providing that access.
“(c) The Legislature finds that even though it has provided immunity from liability
to persons required or authorized to make reports pursuant to this article, that immunity
does not eliminate the possibility that actions may be brought against those persons based
upon required or authorized reports. In order to further limit the financial hardship that
those persons may incur as a result of fulfilling their legal responsibilities, it is necessary
that they not be unfairly burdened by legal fees incurred in defending those actions.
Therefore, a mandated reporter may present a claim to the State Board of Control for
reasonable attorney’s fees and costs incurred in any action against that person on the
basis of making a report required or authorized by this article if the court has dismissed
the action upon a demurrer or motion for summary judgment made by that person, or if
he or she prevails in the action. The State Board of Control shall allow that claim if the
requirements of this subdivision are met, and the claim shall be paid from an
appropriation to be made for that purpose. Attorney’s fees awarded pursuant to this
section shall not exceed an hourly rate greater than the rate charged by the Attorney
General of the State of California at the time the award is made and shall not exceed an
aggregate amount of fifty thousand dollars ($50,000).
“This subdivision shall not apply if a public entity has provided for the defense of
the action pursuant to Section 995 of the Government Code.
“(d) A court may award attorney’s fees and costs to a commercial film and
photographic print processor when a suit is brought against the processor because of a
disclosure mandated by this article and the court finds this suit to be frivolous.”

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entitled to assert the Penal Code section 11172, subdivision (a) qualified privilege, but
not the absolute privilege set forth within Civil Code section 47(b). Implied in the trial
court’s order denying M.K.’s anti-SLAPP motion is that section 425.16 applies to
defamation actions such as the one filed by Smith, and that Smith met his burden of
demonstrating a reasonable probability of prevailing on the merits of his defamation
claim.
II. ISSUES
M.K. contends the trial court erred in finding that the litigation privilege set forth
in Civil Code section 47(b) was inapplicable, and that because Smith’s defamation
lawsuit is barred by the privilege, Smith cannot demonstrate a reasonable probability of
prevailing on the merits of his defamation claim. She therefore concludes the trial court
erred in denying her anti-SLAPP motion.
III. DISCUSSION
A. Appellate review of an order denying an anti-SLAPP motion.
An order denying a special motion to strike is appealable. (§ 425.16, subd. (j);
§ 904.1, subd. (a)(13).)
On appeal, we review the record de novo to determine, first, whether the defendant
has made the requisite initial showing that the plaintiff’s action arose from protected
activity, and, if so, whether the plaintiff has demonstrated a reasonable probability of
success. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
B. Section 425.16 requires a two-step process.
Section 425.16, subdivision (b)(1) provides: “A cause of action against a person
arising from any act of that person in furtherance of the person’s right of petition or free
speech . . . in connection with a public issue shall be subject to a special motion to strike,
unless the court determines that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
Section 425.16 provides a “two-step process for determining whether an action is
a SLAPP. First, the court decides whether the defendant has made a threshold showing

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that the challenged cause of action is one arising from protected activity. (§ 426.16,
subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying
the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision
(e).’ [Citation.] If the court finds that such a showing has been made, it must then
determine whether the plaintiff has demonstrated a probability of prevailing on the claim.
[Citations.]” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)
C. Smith’s defamation claim is covered under the first step of the analysis.
The statutory definition of an “act in furtherance of a person’s [constitutional]
right of petition or free speech” includes “(1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law.” (§ 425.16, subd. (e).) In the context of statements made
in official proceedings, courts may grant anti-SLAPP motions without a separate showing
that the underlying statement concerned an issue of public significance. (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113, 1116-1118.)
Implied in the trial court’s order denying M.K.’s anti-SLAPP motion is that
Smith’s defamation action is one “arising from” protected activity. We agree. As
discussed below, M.K.’s statements to the police accusing Smith of sexual molestation
were made during an “official proceeding authorized by law.” We therefore conclude
that Smith’s defamation action was subject to a special motion to strike pursuant to
section 425.16.
D. Smith cannot satisfy the second step of the SLAPP analysis by showing a
probability of prevailing on the merits.
Since Smith’s cause of action arose from activities that are protected by the anti-
SLAPP statute, Smith was required to demonstrate a probability of prevailing on the
merits. (§ 425.16, subd. (b)(1); Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67.) This means that Smith was required to state and substantiate a legally
sufficient claim. (Ibid.)

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M.K. contends Smith cannot show a reasonable probability of prevailing on the
merits because his defamation cause of action is barred by the litigation privilege set forth
in Civil Code section 47(b). We agree.
1. The Act does not apply to minors reporting claimed sexual abuse.
The Act requires “a mandated reporter” who “has knowledge of or observes a
child whom the mandated reporter knows or reasonably suspects has been the victim of
child abuse or neglect” to make a report to certain designated agencies. (Pen. Code,
§ 11166, subd. (a).) “Any other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child abuse” may make a
report, but is not required to do so. (Pen. Code, § 11166, subd. (e).) These individuals
are known as permissive reporters. (Thomas v. Chadwick (1990) 224 Cal.App.3d 813,
819-820, fn. 8.) Penal Code section 11172, subdivision (a) provides “[a]ny other person”
who makes a child abuse report with qualified immunity.
Smith argues that an eight-year-old minor such as M.K. qualifies as “[a]ny other
person” as that term is used in Penal Code sections 11166, subdivision (e) and 11172,
subdivision (a), and that M.K. is therefore a permissive reporter under the Act. M.K.
responds that the phrase “any other person” refers to third parties who report instances of
known or suspected child abuse, not to children who report their own sexual child abuse.
Review of the Act, together with application of the principles of statutory interpretation,
persuade us that M.K. is not a permissive reporter under the Act.
“The fundamental goal of statutory interpretation is to ascertain the Legislature’s
intent to effectuate the purpose of the law, focusing not only on the words used but also
the objectives of the statute, the evils to be remedied and the legislative history of the
statute. [Citation.]” (Thomas v. Chadwick, supra, 224 Cal.App.3d at p. 821.)
The evil to be remedied, i.e., the abuse of children, is an evil that has tragic
consequences for both the child victim and our society.8 (Hale & Underwood, Child
8 “Child abuse and neglect are not modern occurrences. Greek and Roman records
suggest the predominance of child abuse during those times. ‘Because their fathers could

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Abuse: Helping Kids Who Are Hurting (1991) 74 Marq. L.Rev. 560, 561 [“Victims of
child abuse and neglect exhibit devastating consequences as adults. Statistically, these
individuals have lower IQs, a higher frequency of suicide attempts and more alcohol-
related problems. Furthermore, they are significantly more prone to become abusers
themselves.”], fns. omitted.)
In 1962, the publication of “The Battered Child Syndrome” by Dr. C. Henry
Kempe drew wide public attention to the problem of child abuse for the first time.
(Singley, Failure To Report Suspected Child Abuse: Civil Liability of Mandated
Reporters (1998) 19 J. Juv. L. 236, 238.)
In 1963, California, recognizing the necessity for early detection and reporting of
child abuse, became the first state to adopt a mandated child abuse reporting statute when
sell, abandon, or maltreat them, Roman children occupied the status of chattels.’ Witness
accounts throughout history provide vivid stories of how children have been ruthlessly
tortured, whipped, burned, disfigured, and even killed.” (Richardson, Physician/Hospital
Liability for Negligently Reporting Child Abuse (2002) 23 J. Legal Med. 131, 132, fns.
omitted.) “Even as late as the mid-1800s, infanticide was accepted as a means to control
population size and to rid the population of people with birth defects. Children were sold
into slavery or used for cheap labor. Abusive practices were common in society at large
and parents were influenced by these practices.” (Marrus, Please Keep My Secret: Child
Abuse Reporting Statutes, Confidentiality, and Juvenile Delinquency (1998) 11 Geo. J.
Legal Ethics 509, 513, fns. omitted.) The first reported criminal cases involving child
abuse in the United States date back to the late 1600s. However, it was not until 1874
that the first documented civil child protection case appeared. It was this case that
prompted concerned citizens to organize the New York Society for the Prevention of
Cruelty to Children. (Trost, Chilling Child Abuse Reporting: Rethinking The CAPTA
Amendments (1998) 51 Vand. L.Rev. 183, 189.) By 1905, 400 additional organizations
had been formed to prevent cruelty to children or to intervene upon discovery of cruelty.
(Freiman, Unequal And Inadequate Protection Under The Law: State Child Abuse
Statutes (1982) 50 Geo. Wash. L.Rev. 243, 244.) These organizations were instrumental
in calling attention to the maltreatment of children, in bringing criminal complaints
against perpetrators, and in placing thousands of neglected children in institutional care.
(Trost, Chilling Child Abuse Reporting: Rethinking The CAPTA Amendments, supra, 51
Vand. L.Rev. at p. 189.)

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it added former section 11161.59 to the Penal Code.10 The statute required physicians
and surgeons to report suspected instances of child abuse to designated local agencies
when it appeared to these professionals “from observation of the minor that the minor
may have been a victim” of child abuse. “Physicians were targeted . . . because of the
assumption that they were more likely than other groups to come in contact with injured
children.” (Trost, Chilling Child Abuse Reporting: Rethinking The CAPTA Amendments,
supra, 51 Vand. L.Rev. at p. 192, fn. 47.)
In 1974, Congress enacted the Child Abuse Prevention and Treatment Act of
1974. (Pub.L. No. 93-247 (Jan. 31, 1974) 88 Stat. 4; codified in 42 U.S.C. §§ 5101 et
seq.) “Congress intended the federal act to facilitate state programs whose objective is to
prevent, identify and treat victims of child abuse. [Citation.]” (Thomas v. Chadwick,
supra, 224 Cal.App.3d at p. 825.) Toward that goal federal grants were authorized,
conditioned on the requirement that states have laws providing “for the reporting of
known or suspected instances of child abuse and neglect.” (Former C.F.R. § 1340.3-
3(d)(2)(i).) The requirement was “deemed satisfied if a State requires specified persons
by law, and has a law or administrative procedure which requires, allows, or encourages
all other citizens, to report known or suspected instances of child abuse and neglect to
9 Former Penal Code section 11161.5 read as follows: “In any case, in which a
minor is brought to a physician and surgeon for diagnosis or treatment, or is under his
charge or care, and it appears to the physician and surgeon from observation of the minor
that the minor may have been a victim of a violation of Section 273a, he shall report such
fact by telephone and in writing to the head of the police department of the city or city
and county, if the observation is made in a city or city and country, or to the sheriff, if the
observation is made in unincorporated territory, or to the nearest child welfare agency
offering child protective services. The report shall state, if known, the name of the
minor, his whereabouts and the character and extent of the injuries. [¶] The physician
and surgeon shall not be required to report as provided herein if in his opinion it would
not be consistent with the health, care, or treatment of the minor.” (Former Pen. Code,
§ 11161.5.)
10 By 1967 every state had some type of reporting statute in place. (Singley, Failure
to Report Suspected Child Abuse: Civil Liability of Mandated Reporters, supra, 19 J. Juv.
L. at p. 238.)

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one or more properly constituted authorities with the power and responsibility to perform
an investigation and take necessary ameliorative and protective steps.” (Ibid., italics
added.)
In 1975, our Legislature enacted former Penal Code 11161.6, California’s first
permissive reporting statute. It allowed, but did not require, “probation officer[s]” who
“observe” suspected child abuse to make a report to certain specified agencies. (Former
Pen. Code, § 11161.6.)
In 1976, former Penal Code section 11161.6 was amended to provide as follows:
“In any case in which a minor is observed by a probation officer or any person other than
a person described in Section 11161.5 and it appears to the probation officer or person
from observation of the minor that the minor has a physical injury or injuries which
appear to have been inflicted upon him by other than accidental means by any person,
that the minor has been sexually molested, or that any injury prohibited by the terms of
section 273a has been inflicted upon the minor, he may report such injury to the agencies
designed in Section 11161.5. [¶] No probation officer or person shall incur any civil or
criminal liability as a result of making any report authorized by this section unless it can
be proven that a false report was made and the probation officer or person knew or should
have known that the report was false.” (Former Pen. Code, § 11161.6.) “Legislators
expected that by including lay people as reporters and providing protection for people
against possible liability for making reports, the system would be more likely to uncover
ongoing child abuse. Neighbors, relatives and friends might be privy to private
information or observations which professionals would miss.” (Marrus, Please Keep My
Secret: Child Abuse Reporting Statutes, Confidentiality, and Juvenile Delinquency,
supra, 11 Geo. J. Legal Ethics at p. 515, fns. omitted.)
Also in 1976, our Supreme Court held in Landeros v. Flood (1976) 17 Cal.3d 399
(Landeros) that former Penal Code section 11161.5 was ambiguous with respect to the
state of mind of a physician accused of failing to make a required report of child abuse.
The court opined that to prove actionable failure to report, a battered child would be
required to show that the physician actually “observed” the injuries and formed the

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opinion that they were intentionally inflicted upon the child. (Landeros v. Flood, supra,
17 Cal.3d at p. 415.)
In November 1978, the state Department of Justice estimated that only about 10
percent of all cases of child abuse were being reported. (Stecks v. Young (1995) 38
Cal.App.4th 365, 371.) Faced with this reality, a growing population of abused children
and the need to comply more fully with federal guidelines, in 1980 the Legislature
repealed former Penal Code sections 11161.5 and 11161.6, and enacted the Child Abuse
Reporting Law (Pen. Code, § 11165 et seq.), “a comprehensive scheme of reporting
requirements ‘aimed at increasing the likelihood that child abuse victims are identified.’
[Citations.]” (Stecks v. Young, supra, 38 Cal.App.4th at p. 371.)
The 1980 version of the Act inserted the element of “knowledge” into the required
and permissive reporting provisions so that specified individuals would be required to
report, and others would be authorized to report, not only direct observations of child
abuse, but also “knowledge” of suspected child abuse obtained directly from the child
and/or from other sources. (Pen. Code, § 11166, subds. (a)(c);11 65 Ops.Cal.Atty.Gen.
345 (1982).) In addition, the reporting standard was revised to require reporting
whenever there exists a “reasonable suspicion” of child abuse. (Krikorian v. Barry
11 In 1980, Penal Code section 11166, subdivision (a) read as follows: “Except as
provided in subdivision (b), any child care custodian, medical practitioner, nonmedical
practitioner, or employee of a child protective agency who has knowledge of or observes
a child in his or her professional capacity or within the scope of his or her employment
whom he or she reasonably suspects has been the victim of child abuse shall report such
suspected instance of child abuse to a child protective agency immediately or as soon as
practically possible by telephone and shall prepare and send a written report thereof
within 36 hours of receiving the information concerning the incident. For the purposes of
this article, ‘reasonable suspicion’ means that it is objectively reasonable for a person to
entertain such a suspicion, based upon facts that could cause a reasonable person in a like
position, drawing when appropriate on his or her training and experience, to suspect child
abuse.” Subdivision (c) provided that “[a]ny person who had knowledge of or observes a
child whom he or she reasonably suspects has been a victim of child abuse may report
such suspected instance of child abuse to a child protective agency.”

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(1987) 196 Cal.App.3d 1211, 1217.) These changes were made to address the Landeros
court’s determination that the existing reporting statute was ambiguous.12 (Ibid.)
Simultaneously, permissive reporters were granted qualified immunity.13 It was
believed that “‘extending the limited civil and criminal immunity to “any other person
making a report of child abuse or molestation” [would] encourage members of the
general public to report known cases of child abuse,’ and that “‘[t]he limitation on the
immunity for false or negligent reports [was] necessary to prevent a vindictive former
spouse or neighbor from making a knowingly false report.’” (Storch v. Silverman (1986)
186 Cal.App.3d 671, 680, citing State Bar of Cal., Rep. on Assem. Bill No. 2497 (1979-
1980 Reg. Sess.) p. 2.); State Bar of Cal., Com. on Juv. Justice, letter to Sen. Omer L.
Rains, Feb. 20, 1980 [opining that providing complete immunity to permissive reporters
was unwarranted because it would allow “third persons (e.g., a vindictive neighbor or
relative) to make a malice-based report and be totally immune from civil or criminal
liability.”].)
Following the 1980 enactment, our Legislature continuously amended the
reporting provisions as experience revealed areas in need of repair. In 1987, the
Legislature once again recast the law, renaming it the Child Abuse and Neglect Reporting
Act. (Pen. Code, § 11164, subd. (a), added by Stats.1987, c. 1444, § 1.5.)
12 The Legislature made clear that in repealing former Penal Code sections 11161.5,
11161.6, and in enacting the 1980 Child Abuse Reporting Law it did not intend “to alter
the holding in the decision of [Landeros], which imposes civil liability for a failure to
report child abuse.” (See Historical and Statutory Notes, 51C West’s Ann. Pen. Code
(2000 ed.) foll. § 11165, p. 566.)
13 Former Penal Code section 11172, subdivision (a) provided, in relevant part: “No
child care custodian, medical practitioner, nonmedical practitioner, employee of a child
protective agency, or commercial film and photographic print processor who reports a
known or suspected instance of child abuse shall be civilly or criminally liable for any
report required or authorized by this article. Any other person reporting a known or
suspected instance of child abuse shall not incur civil or criminal liability as a result of
any report authorized by this article unless it can be proven that a false report was made
and the person knew that the report was false.”

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In its current form, the Act defines a “child” as “a person under the age of 18
years.” (§ 11165.) “Child abuse or neglect” is defined generally as “physical injury
inflicted by other than accidental means upon a child by another person.” (Pen. Code,
§ 11165.6.) It also means sexual abuse, which includes sexual assault and sexual
exploitation. (Pen. Code, § 11165.1.)
The purpose and intent of the Act “is to protect children from abuse and neglect.”
(Pen. Code, § 11164, subd. (b).) All persons participating in the investigation of
suspected child abuse or neglect are required to “consider the needs of the child victim,”
and to “do whatever is necessary to prevent psychological harm to the child victim.”
(Ibid.) The objective of the Act “has been to identify victims, bring them to the attention
of the authorities, and, where warranted, permit intervention.” (Stecks v. Young, supra,
38 Cal.App.4th at p. 371; see also Storch v. Silverman, supra, 186 Cal.App.3d at p. 678
[legislative scheme was “designed to encourage the reporting of child abuse to the
greatest extent possible to prevent further abuse.”].)
Thirty-four statutorily enumerated classes of individuals are identified as
“mandated reporters” under Penal Code section 11165.7 of the Act. These individuals
are required to “make a report to an agency specified in Section 11165.9 whenever the
mandated reporter, in his or her professional capacity or within the scope of his or her
employment, has knowledge of or observes a child whom the mandated reporter knows
or reasonably suspects has been the victim of child abuse or neglect.” (Pen. Code,
§ 11166, subd. (a), italics added.) The report must be made “immediately or as soon as is
practicably possible by telephone,” and the reporter is required to “prepare and send a
written report thereof within 36 hours of receiving the information concerning the
incident.” (Ibid.) Failure to comply with the reporting requirements is punishable as a
misdemeanor. (Pen. Code, § 11166, subd. (b).)
Permissive reporters are described in Penal Code section 11166, subdivision (e) of
the Act as follows: “Any other person who has knowledge of or observes a child whom
he or she knows or reasonably suspects has been a victim of child abuse or neglect may

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report the known or suspected instance of child abuse or neglect to an agency specified in
Section 11165.9.”14 (Pen. Code, § 11166, subd. (e), italics added.)
“[I]mmunity is a key ingredient in maintaining the Act’s integrity.” (Stecks v.
Young, supra, 38 Cal.App.4th at p. 375.) Penal Code section 11172, subdivision (a)
provides that “[n]o mandated reporter shall be civilly or criminally liable for any report
required or authorized by this article.” The absolute immunity conferred on mandated
reporters was granted to “obviate the chilling effect the spectre of civil lawsuits would
have upon a reporter’s willingness to become involved.” (Thomas v. Chadwick, supra,
224 Cal.App.3d at p. 821; see also Storch v. Silverman, supra, 186 Cal.App.3d at p. 677
[broad immunity provided by the Legislature in recognition of the burden placed upon
those professionals required to report instances of suspected and known child abuse].)
With respect to permissive reporters, Penal Code section 11172, subdivision (a)
grants only qualified immunity. “Any other person reporting a known or suspected
instance of child abuse or neglect shall not incur civil or criminal liability as a result of
any report authorized by this article unless it can be proven that a false report was made
and the person knew that the report was false or was made with reckless disregard of the
truth or falsity of the report, and any person who makes a report of child abuse or neglect
known to be false or with reckless disregard of the truth or falsity of the report is liable
for any damages caused.” (Italics added.)
Smith, focusing on the words “any other person” as used in Penal Code sections
11166, subdivision (e) and 11172, subdivision (a) contends the Legislature obviously
meant to include eight-year-old minors as permissive reporters. To resolve the issue, we
look first to the words of the statute. “When the language is clear and there is no
uncertainty as to the legislative intent, we look no further and simply enforce the statute
14 The agencies referred to in Penal Code section 11165.9 include “any police
department or sheriff’s department, not including a school district police or security
department, county probation department, if designated by the county to receive
mandated reports, or the county welfare department.” (Pen. Code, § 11165.9.)

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according to its terms.” (DuBois v. Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382,
387-388.)
The language of the earlier versions of the reporting statutes is plain. Mandated
reporters were required to report (former Pen. Code, § 11161.5), and permissive reporters
(former Pen. Code, § 11161.6.) were allowed to report, child abuse if the reporter
“observed” suspected abuse. The word “observe” means “1. To perceive; notice. 2. To
watch attentively: observe a child’s behavior.” (American Heritage Dict. (2d college ed.
1982) p. 858.) Sexual abuse is inflicted upon a child. The abuse is experienced, not
observed. We therefore conclude that the earlier versions of the mandated and
permissive reporting provisions referred to third parties and not to children reporting their
own alleged abuse.
Current versions of the reporting provisions include, in addition to individuals who
“observe” suspected child abuse, individuals who have “knowledge of” a child whom the
reporter “knows or reasonably suspects has been a victim of child abuse or neglect.”
(Pen. Code, § 11166, subds. (a), (e).) The word “knowledge is defined as: “1. The state
or fact of knowing. 2. Familiarity, awareness, or understanding gained through
experience or study. 3. The sum or range of what has been perceived, discovered, or
learned. 4. Learning; erudition.” (American Heritage Dict. (2d college ed. 1982) p. 705.)
It could be argued that a child “has knowledge of” his or her own abuse when he or she
experiences it, and thus qualifies as a permissive reporter.
We are mindful, however, that we do not construe statutes in isolation, but rather
read every statute with reference to the entire scheme of law of which it is a part so that
the whole may be harmonized and retain effectiveness. (People v. Pieters (1991) 52
Cal.3d 894, 899.) Nothing contained within the Act suggests that any of its “reporting”
provisions are applicable to minors alleging sexual abuse. The Act’s definition of “child”
(Pen. Code, § 11165), definitions relating to mandating reporting and training (Pen.
Code, § 11165.7), provision concerning investigating a child abuse complaint by a parent
or guardian against a school employee (Pen. Code, § 11165.14), duty to report provisions
(Pen. Code, § 11166) and the “required information” provisions relating to reports (Pen.

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Code, § 11167) all suggest that “reporters of child abuse” subject to the Act are third
party reporters. The Act describes three classes of individuals, mandated reporters,
permissive reporters and the protected class, children. The language of the Act makes
clear that it applies to the reporting of suspected child abuse and statements made in
connection therewith, and not statements made by the protected class to their caregivers
and to authorities investigating a subsequently filed complaint.
Our conclusion is bolstered by the legislative history of the Act which establishes
that mandated reporters are third parties who, because of their professions, come into
close contact with children, and thus are in an ideal position to report suspected child
abuse. What Penal Code section 11166, subdivision (e) evidences is the Legislature’s
concern that other individuals who come into contact with children be encouraged to
report known or suspected child abuse. It seems clear that our Legislature was aware that
friends, relatives, and neighbors file the largest number of child abuse reports (Freiman,
Unequal And Inadequate Protection Under The Law: State Child Abuse Statutes, supra,
50 Geo. Wash. L.Rev. at p. 259), and that in recognition of this fact section 11166,
subdivision (e) was enacted as a catchall provision necessary to encourage these
individuals, as well as other third parties, to report known or suspected instances of child
abuse.15
15 Smith, pointing to Civil Code section 48.7, which prohibits a person charged with
child abuse from bringing a defamation action against a minor and others while criminal
charges are pending, contends that our Legislature must have contemplated meritorious
actions for defamation against minors reporting child sexual abuse. We disagree.
Section 48.7 was enacted “to prevent a person accused of crimes against children from
intimidating victims, witnesses and parents by filing or threatening to file a civil slander
or libel action” while the criminal action was pending. (Sen. Republican Caucus, 3d
reading analysis of Assem. Bill No. 42, (1981-1982 Reg. Sess.) as amended June 17,
1981, p. 2.) The proponents of the legislation argued that the legislation was necessary
because “the tactic of bringing a defamation action may produce a chilling effect on the
willingness of persons to participate in the prosecution of actual crimes against the
minors.” (Ibid.) We view the enactment of Civil Code section 48.7 as an
acknowledgement of the litigious nature of our society, and recognition of the possibility

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17
At least one legal commentator has reached the same conclusion. “Child abuse
laws, as most laws concerning children in our society, stem from society’s need to protect
children, rather than from a concern about children’s rights. If an adult is assaulted, he or
she is more likely to be capable of reporting the incident to the authorities. Society’s
view of children, however, is that a child may be too young to protect himself or too
frightened to report the abuse to the appropriate authorities.” (Marrus, Please Keep My
Secret: Child Abuse Reporting Statutes, Confidentiality, and Juvenile Delinquency,
supra, 11 Geo. J. Legal Ethics at p. 514.)16 “Because of this reasoning, it is unlikely . . .
that when legislators expanded the reporting statutes to include everyone as a
discretionary or mandatory reporter that they meant to include the abused child in that
category. As stated, the reporting statutes were first developed because of the belief that
children need added protection. It is unrealistic to expect the abused child to self report
the abuse. If all children were capable of doing this, there would be no need for reporting
statutes. Children would call Child Protective Services on their own and the state would
be able to intervene to protect the child.” (Id. at p. 514, fn. 24.)
The language of Penal Code section 11166, subdivision (e), together with the
structure and legislative history of the statute, convince us that the phrase “[a]ny other
person” used in sections 11166, subdivision (e) and 11172, subdivision (a) means third
persons who acquire knowledge, or observe injuries or other signs indicating that a child
has been abused. Our conclusion is consistent with the purpose of the Act which is to
“combat child neglect and the physical, emotional and sexual victimization of children.”
(Planned Parenthood Affiliates v. Van De Kamp (1986) 181 Cal.App.3d 245, 255; 58
that defamation actions could be filed against minors, including those of tender years, as
tactical maneuvers.
16 The author notes that Michigan is the only state to include children as reporters,
and opines that children were included “to encourage a child who observed another child
being abused to feel comfortable reporting the abuse to the appropriate authorities.”
(Marrus, Please Keep My Secret: Child Abuse Reporting Statutes, Confidentiality, and
Juvenile Delinquency, supra, 11 Geo. J. Legal Ethics at p. 514, fn. 24.)

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18
Ops.Cal.Atty.Gen. 824, 828 (1975) [opining “entire legislative scheme in the area of
child protection is aimed at discovering more cases and preventing serious harm by
taking remedial action.”].)
2. Begier is inapplicable.
The trial court, citing Begier, held that because Smith alleged that M.K. made a
false report to the police, M.K.’s statements were not privileged under the Act. Begier is,
however, inapplicable. In that case, the plaintiff filed an action against his former wife
for malicious prosecution and intentional infliction of emotional distress based upon her
alleged conduct in filing a false police report accusing plaintiff of molesting the couple’s
daughter and repeating that charge in the couple’s dissolution action. (Begier, supra, 46
Cal.App.4th at p. 880.) The trial court sustained the wife’s demurrer as to the intentional
infliction of emotional distress cause of action, but overruled the demurrer as to the
malicious prosecution count. (Ibid.) The Court of Appeal affirmed the judgment as to
the cause of action for malicious prosecution, but reversed as to the cause of action for
intentional infliction of emotional distress. (Id. at p. 888.) The Begier court held that the
alleged false accusations within the dissolution action were privileged under Civil Code
section 47(b). (Begier, supra, 46 Cal.App.4th at p. 882.) The court also held, however,
that even if the filing of a false child abuse police report is subject to the litigation
privilege found in Civil Code section 47(b), the Legislature’s direction in Penal Code
section 11172 that a person who knowingly makes a false report of child abuse “is liable
for any damages caused” creates a limited exception to the privilege. (Begier, supra, 46
Cal.App.4th at pp. 883-885.)
In reaching its decision, the Begier court discerned within the Act “a legislative
effort to balance, on the one hand, the public interest in ferreting out cases of child abuse
so that the child victims can be protected from harm and, on the other hand, the policy of
protecting the reputations of those who might be falsely accused. [Citation.] The
Legislature has struck that balance by withholding immunity from those who knowingly
make false reports of child abuse. If we were to hold that same conduct privileged under

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Civil Code section 47, we would essentially nullify the Legislature’s determination that
liability should attach.” (Begier, supra, 46 Cal.App. 4th at p. 885, fn. omitted.)
The crucial distinction between Begier and the instant case is that unlike the
former wife in Begier, M.K. is not a permissive reporter under the Act. Accordingly, she
is entitled to assert privileges found outside the Act, including the privilege embodied
within Civil Code section 47(b).
3. M.K. is entitled to assert the absolute litigation privilege set forth in Civil
Code section 47(b).
M.K. contends her statements to the police are absolutely privileged pursuant to
Civil Code section 47(b) because her statements were made in an “official proceeding
authorized by law.” We agree.
Civil Code section 47(b) provides an absolute immunity for any communication
made “[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official
proceeding authorized by law, or (4) in the initiation or course of any other proceeding
authorized by law . . . .”
The privilege “promotes the effectiveness of judicial proceedings by encouraging
‘open channels of communication and the presentation of evidence’ in judicial
proceedings. [Citation.] A further purpose of the privilege is to assure utmost freedom
of communication between citizens and public authorities whose responsibility is to
investigate and remedy wrongdoing.’ [Citations.]” (Silberg v. Anderson (1990) 50
Cal.3d 205, 213.) The privilege “is given a broad application in furtherance of the public
policy it is designed to serve.” (Devis v. Bank of America (1998) 65 Cal.App.4th 1002,
1010.)
California appellate courts are split on the issue of whether the absolute privilege
of Civil Code section 47(b) shields testimony or statements to officials conducting
criminal investigations. (Beroiz v. Wahl (2000) 84 Cal.App.4th 485, 495.) The majority
of California courts follow Williams v. Taylor (1982) 129 Cal.App.3d 745 (Williams),
which concluded that the absolute privilege shielded the report to the police by a
president of a car dealership of what he believed to be criminal activity conducted by a

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discharged employee. (See, e.g., Beroiz v. Wahl, supra, 84 Cal.App.4th at pp. 495, 489-
490 [statements by residents of a condominium complex initiating a criminal
investigation against plaintiffs in Mexico absolutely privileged]; Cabesuela v. Browning-
Ferris Industries of California, Inc. (1998) 68 Cal.App.4th 101, 112 [company’s
communication to police accusing terminated employee of threat of violence protected by
absolute privilege of Civil Code section 47(b) even if the report was made in bad faith];
Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 781-783
[law firm’s letters to third persons in connection with the firm’s investigation preparatory
to filing a complaint with the Attorney General held rationally connected to anticipated
litigation]; Passman v. Torkan (1995) 34 Cal.App.4th 607, 616-620 [letter by party to
district attorney’s office recommending investigation and prosecution of opposing party
subject to absolute privilege of Civil Code section 47(b)]; Hunsucker v. Sunnyvale Hilton
Inn (1994) 23 Cal.App.4th 1498, 1502-1505 [absolute privilege of Civil Code section
47(b) applied where hotel management called police upon being informed by a maid that
a customer was seen brandishing a gun]; Cote v. Henderson (1990) 218 Cal.App.3d 796,
806 [report of rape to police was absolutely privileged under Civil Code section 47(b)];
Kim v. Walker (1989) 208 Cal.App.3d 375, 383 [attorney’s communications to plaintiff’s
parole agent were absolutely privileged]; Johnson v. Symantec Corp. (N.D.Cal.1999) 58
F.Supp.2d 1107, 1113 [police reports were absolutely privileged under Civil Code section
47(b)(3)]; Forro Precision, Inc. v. Intern. Business Machines (9th Cir. 1982) 673 F.2d
1045, 1056 [communications by IBM officials to police were absolutely privileged].)
The other side of the split is represented by Fenelon v. Superior Court (1990) 223
Cal.App.3d 1476 (Fenelon) which holds that a knowingly false police report is not
absolutely privileged, as the police department is not a quasi-judicial body. (Id. at pp.
1478, 1483). According to the Fenelon court, false police reports are entitled to only the
qualified privilege for communications to interested parties. (Id. at p. 1483.) Fenelon,
however, has been criticized by cases following Williams on the basis that “the
constitutional and procedural safeguards governing California’s judicial system
undermine the concern that applying the absolute privilege to police reports endangers

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the rights of the reported wrongdoer.” (Beroiz v. Wahl, supra, 84 Cal.App.4th at pp. 495-
496.) While the Williams court recognized the importance of communication between
citizens and the police, and that effective investigation requires an open channel of
communication that would not be possible if a qualified rather than an absolute privilege
applied (Williams, supra, 129 Cal.App.3d at pp. 753-754), the Fenelon court feared
abuse of the absolute privilege.
We agree with the Williams court, and conclude that police investigations are
official proceedings within the meaning of the absolute official proceeding privilege of
Civil Code section 47(b). Thus, we conclude that M.K.’s statements to the police that
Smith sexually abused her are absolutely privileged.
Allowing minors such as M.K. to assert the absolute privilege found in Civil Code
section 47(b) promotes the principal purpose of the statute, which “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.]” (Silberg v. Anderson,
supra, 50 Cal.3d at p. 213.) It also promotes California’s interest in identifying child
abuse victims. (Storch v. Silverman, supra, 186 Cal.App.3d at p. 676 [“The state has a
strong interest in the prevention of child abuse. Since the child abuser often repeats the
abuse, identification of a victim offers an opportunity for intervention by authorities.
However, identification is often difficult due to the natural characteristics of the child and
the private or special circumstances in which the abuse may occur.”], fn. omitted.)
IV. CONCLUSION
We hold that minors who report sexual abuse to the police do not qualify as
permissive reporters under the Act, and that such minors are, therefore, entitled to assert
the absolute litigation privilege set forth in Civil Code section 47(b).17 In light of our
holding, it is clear that Smith cannot demonstrate a reasonable probability of prevailing
on his defamation claim. We therefore conclude the trial court erred in denying M.K.’s
anti-SLAPP motion.
17 In view of this conclusion, we need not address the parties’ remaining contentions.

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V. DISPOSITION
The superior court is directed to set aside its order denying appellant’s section
425.16 motion to strike and to issue a new and different order granting the motion.18
Appellant is awarded the costs of this appeal.
NOT FOR PUBLICATION
_____________________, P.J.
BOREN
We concur:
______________________, J.
NOTT
______________________, J.
DOI TODD
18 The trial court is directed on remand to consider M.K.’s request for attorneys’ fees
and costs as the prevailing party on the special motion to strike. (§ 426.16, subd. (c).)

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