Is California Civil Code 47 Anaheim’s Answer?

This image is something from Google, which seems to be generic

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:

  1. Section (a): what is “proper” in this context? Does the staff report remove the “propriety” of this action?
  2. Section (b): is this report (or the compilation of this report) a “proceeding” for these purposes?
  3. Section (b)(1): Not relevant, right?
  4. Section (b)(2): Not relevant, right? (Less sure here.)
  5. Section (b)(3): Not relevant, right?
  6. Section (b)(4): Not relevant, right?
  7. 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.
  8. 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.
  9. 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!

About Greg Diamond

Somewhat verbose attorney, semi-retired due to disability, residing in northwest Brea. Occasionally runs for office against bad people who would otherwise go unopposed. Got 45% of the vote against Bob Huff for State Senate in 2012; Josh Newman then won the seat in 2016. In 2014 became the first attorney to challenge OCDA Tony Rackauckas since 2002; Todd Spitzer then won that seat in 2018. Every time he's run against some rotten incumbent, the *next* person to challenge them wins! He's OK with that. Corrupt party hacks hate him. He's OK with that too. He does advise some local campaigns informally and (so far) without compensation. (If that last bit changes, he will declare the interest.)