Neshanian is making sport of people not bringing up CA Civ. Code 47 at Tuesday’s Anaheim Council meeting. Is this provision really as critical as he maintains? Let’s delve into it!
While we start with the text of the law, we should note that it does not unpack itself. It will generally have to be construed in the context of other portions of the state code — something often explicated in appellate decisions. Neshanian may have some such decisions in mind to justify his deriding Mayor Aitken, Judge Smith, Pelletier, me, and others for overlooking Civ Code § 47 (which I’ll refer to as “Civ 47” just to save on pixels) in their discussions on and about Tuesday night — and if so this will be a great place to add them.
CA Civ Code § 47 (2017)
A privileged publication or broadcast is one made:
(a) In the proper discharge of an official duty.
(b) In 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 and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows:
(1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action.
(2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, “physical evidence” means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure.
(3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies.
(4) A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized or required by law.
(c) In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such a relation to the person interested as to afford a reasonable ground for supposing the motive for the communication to be innocent, or (3) who is requested by the person interested to give the information. This subdivision applies to and includes a communication concerning the job performance or qualifications of an applicant for employment, based upon credible evidence, made without malice, by a current or former employer of the applicant to, and upon request of, one whom the employer reasonably believes is a prospective employer of the applicant. This subdivision authorizes a current or former employer, or the employer’s agent, to answer whether or not the employer would rehire a current or former employee. This subdivision shall not apply to a communication concerning the speech or activities of an applicant for employment if the speech or activities are constitutionally protected, or otherwise protected by Section 527.3 of the Code of Civil Procedure or any other provision of law.
(d) (1) By a fair and true report in, or a communication to, a public journal, of (A) a judicial, (B) legislative, or (C) other public official proceeding, or (D) of anything said in the course thereof, or (E) of a verified charge or complaint made by any person to a public official, upon which complaint a warrant has been issued.
(2) Nothing in paragraph (1) shall make privileged any communication to a public journal that does any of the following:
(A) Violates Rule 5-120 of the State Bar Rules of Professional Conduct.
(B) Breaches a court order.
(C) Violates any requirement of confidentiality imposed by law.
(e) By a fair and true report of (1) the proceedings of a public meeting, if the meeting was lawfully convened for a lawful purpose and open to the public, or (2) the publication of the matter complained of was for the public benefit.
(Amended by Stats. 2004, Ch. 182, Sec. 4. Effective January 1, 2005. Operative July 1, 2005, by Sec. 64 of Ch. 182.)
Other attorneys or legal scholars are welcome to enter the fray! And for the record, I’m happy for Neshanian to be found to be correct about this … but I’m not going to concede the point based on his declarations.
My first question is: where in state law is “privileged publication” defined, in this context, and what implications does that designation have? (I tend to think of it as “person making cannot be sued over its content”.)
I’ll also note that the following yellow (not red) flags that occur to me on a quick read-through:
- Section (a): what is “proper” in this context? Does the staff report remove the “propriety” of this action?
- Section (b): is this report (or the compilation of this report) a “proceeding” for these purposes?
- Section (b)(1): Not relevant, right?
- Section (b)(2): Not relevant, right? (Less sure here.)
- Section (b)(3): Not relevant, right?
- Section (b)(4): Not relevant, right?
- Section (c): This provision is too complicated to process immediately with confidence, but I suppose that it may address the question of whether materials that the city maintains are privileged personnel files can actually be released. That’s is part of the issue at hand, but not the brunt of it.
- Section (d): Again, I’m not sure that the JL Group investigation qualifies as a “proceeding” for these purposes, but in any event (d)(2)(C) presents and obstacle that would need to be surmounted.
- Section (e): Subsection (1) wouldn’t apply; subsection (2) is weirdly worded, as it literally says “by a fair and true report of the publication of the matter complained of was for the public benefit,” which is garbled. It also seems to be potentially way too broad of a category, as well as too subjective in what was “for the public benefit.” But maybe there’s something here.
OK, back to Neshanian to explain what he means (and why) — and maybe to offer up some relevant case law!
I’ll let the record speak for itself. Why don’t you ask former federal prosecutor?
Uh-uh-uh, Lippy! As my post shows, the record does not speak for itself. I’m asking you to put up or … well, not “shut up,” because I know that that’s impossible, but at least meekly (if you can muster it) withdraw your assertion.
But I hope that you can back it up! I’d love for it to be true, but….
https://www.dwt.com/insights/2007/04/californias-constitutional-right-to-privacy-is-lim
Exactly where is the litigation privilege here?
Damn you for making me defend the city’s position, but the investigation is not litigation. If the city publicized actually protected personnel file information, it would be the employees, not the city, who would bring the case, and the employees, not the city, that would enjoy a litigation privilege. But that not even at issue here.
Beyond that: if releasing that sort of information is actually a crime, the city would be dealing with the AG’s office, and (if a request for a court order were granted prior to release) with the court system itself.
And beyond that, the city deciding that it could just violate any law because it could not be successfully sued would be among the worst moves it could make for recruiting staff.
I read the Dechert piece, and it does not speak for itself, except in your favor. Explain in detail how it does, or wear the white feather.
OC Register failed to mention 47 also.
https://www.ocregister.com/2023/05/03/full-results-of-independent-anaheim-corruption-report-wont-be-publicly-released/
It also failed to blame all of this on Dave Min, and for the same reason: lack of relevance (unless you can prove it.
Also there is a crime/fraud exception to the attorney client privilege. That privilege is not absolute. So if a city employee shared info with a city attorney about an ongoing crime or fraud which was later divulged to JL, that would not be protected by the privilege.
This is a good point, one I believe I’ve already mentioned — but it has nothing to do with CCC 47.
https://scholar.google.com/scholar_case?case=17072883830055808121&hl=en&as_sdt=6&as_vis=1&oi=scholarr
Right to privacy not absolute and must be weighed against competing interest like statutorily mandated, privileged communications. The public has a right to know if there are foxes guarding the hen house.
OK, now I’m wondering whether you’re even reading anything beyond the headlines of posts. Not only did I point out that there was a balancing test where the right to privacy is concerned, but Pelletier explained this at length (and well) in her presentation — one of the few parts where she was entirely correct.
I never derided Pelletier. And the legislative privilege and public benefit privilege are absolute. The common interest privilege qualified. Neither you nor Pelletier mentioned 47. Next .
The section 47 combined with Anti-SLAPP laws could be a strong defense to liability based on the act of publishing the report.
If the concerns are elsewhere, e.g., protecting individuals from liability for what they did, not encouraging further investigation or general nefarious closed-mouthedness, then that explains the silence.
This is really Tort II law school exam stuff.
subsection (c) (“common interest”) application to employers protects false statement which are privileged so long as malice not shown.
https://casetext.com/case/noel-v-river-hills-wilsons-inc
See BACI 1723 “Common Interest” Privilege – Malice (Civ. Code sec. 47(c)
(p. 1134 of document, 1060 of book)
https://www.courts.ca.gov/partners/documents/Judicial_Council_of_California_Civil_Jury_Instructions.pdf
With respect to the public benefit privilege at subsection (e)
Go (re-)read US. v. Sullivan.
https://supreme.justia.com/cases/federal/us/376/254/
https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?referer=&httpsredir=1&article=1862&context=facpub
Certainly, any journalist worth their weight in gold would have an appreciation of privileged communication as (d) (the “fair reporting” privilege) protects journalist reporting on judicial, legislative or adminstrative action.
BACI 1724 “Fair and True Reporting” Privilege (Civ. Code sec. 47(d))
https://www.justia.com/trials-litigation/docs/caci/1700/1724/
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More on the legislative proceeding privilege. Civil Code sec. 47(b)(1) and (4)
(this covers JL Report – it was in furtherance of an official proceeding – per council vote – council protetcted and non-council members protected too)
The privilege is construed BROADLY.
People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 936, 944 (defined)
Scott v. McDonnell Douglas Corp. (1974) 37 Cal.App.3d 277 (applies to state or municipal legislative bodies)
Board of Supervisors v. Superior Court (1995) 32 Cal. App. 4th 1616 (non legislators)
Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146
https://californiaglobe.com/articles/legislative-privilege-in-california/
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As for Civ. Code sec. 47(a) it only applies to government officials. Here, city council and other elected city officials.
https://casetext.com/case/royer-v-steinberg (applying (a) and (b) to municipal acts/proceedings)
Now we’re getting somewhere. Unfortunately (only for this reason), I’m off to the Anaheim Dems meeting, so my response will have to await my return.
You’re right about Sullivan, though. If someone leaked us the information, we could publish it. But we’re not supposed to solicit it, as I recall from a later case, and we hereby don’t.
I was there all along.
And, you could argue the report is related to existing litigation (Melahat) or potential litigation (Sindhi, other cabal members) to satisfy (b) litigation privilege. And, you could argue common interest between Anaheim officials and their constituents to satisfy (c) common interest privilege.
Would the redactions survive mandate? FOIA? CPRA? That is the question. If privileged communications were in fact redacted, was the redaction lawful or is it protected from compelled public disclosure.
The privilege is eclectic and applied BROADLY.
Show me applicable case law. If you’re right, then cities have such great privileges that they don’t have to take many of the precautions they do — and that’s not only not the impression that I have, it’s not the impression that they have. Although if malice is the standard where they use the privilege, I’d think that acting as if they’re free to do anything might well constitute it.
I’ve shown you more than enough. You suffer from myopia. Legislators and employers have privileges.
Dude….
There is another reason for the threatened, subjective opacity, law enforcement or prosecuting agencies do not want to impede an ongoing undercover operation or want to jeopardize potential, criminal investigations or actions.
So the public is stuck in the middle once again between the city and the man.
…Under rules of statutory interpretation, this section defines what a privileged communication is. You don’t need to look elsewhere in the code to unpack 47.
And, generally, a privileged communication can be FALSE and still not subject the maker to any LIABILITY.
Without privileges and immunities (absolute and qualified), public and private work would not get done….
What hearing, when’s that?