Defamation and the Disgruntled Defendant

The attorneys here had argued that their statements to the media outlets were covered by the fair report privilege of Civil Code section 47, subdivision (d). As originally promulgated, the code protected reporters and others in the media from liability when they wrote or discussed judicial proceedings and the competing narratives therein. However, in 1994, after it was held in Shahvar v. Superior Court (1994) 25 Cal.App.4th 653 that the privilege did not protect from liability an attorney who transmitted a copy of a pleading to a newspaper, California's legislature amended the law. The 1996 amendment expanded the privilege to include not just fair and true “reports,” but also fair and true “communications.” With this change, the legislature connected the spirits of the litigation privilege and the fair report privilege “to protect a third party who communicates this already privilege[d] material to the press.” Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1540 (1995-1996 Reg. Sess.).

The court in our case thus agreed with accused attorneys Kabateck and Hutchinson that the fair report privilege applied to their communications with news media. The inquiry did not end there, however, as the court went on to quote Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 240, for its holding that the fair report privilege “confers an absolute privilege on any fair and true report in, or a communication to, a public journal of a judicial proceeding, or anything said in the course thereof.” In other words, in order to be covered by the fair report privilege under Sipple, the attorneys would have to show that their statements to Fox 11 news and CBS's “Money 101″ were:

• a fair and true report;
• communicated in or to a public journal;
• concerning a judicial proceeding or anything said in the course thereof.

And if they could establish these things, Drobot and the hospital would not be able to show likelihood of success on the merits — the requisite “minimal merit” — because when the privilege applies, the reported statements are absolutely privileged, no matter what the speaker's motives were in making them. Hawran v. Hixson (2012) 209 Cal.App.4th 256, 278; McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 974.

The Court's Analysis

The court dispensed first with the second requirement the attorneys must prove, since none of the parties disputed that within the meaning of the statute, Fox 11 news and CBS's “Money 101″ were “public journals,” nor that the attorney defendants' statements were “communicated” to them. So, were the attorneys' statements “fair and true reports” stated in the course of a “judicial proceeding?”

What is a “judicial proceeding”? The court observed that California courts have construed the phrase “judicial proceeding” in a broad manner, so that even the filing of a complaint is included. Kurata v. Los Angeles News Pub. Co. (1935) 4 Cal.App.2d 224, 227; Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 823. The plaintiffs, however, pointed to the precedent set in Burrill v. Nair (2013) 217 Cal.App.4th 357, a case with many similarities to the one at hand.

In Burrill, psychologist and plaintiff Dr. Burrill had been assigned by the court to assist in a contested child custody matter between Mr. Nair and his former wife. Mr. Nair, apparently unhappy with Burrill's work, filed complaints with two police departments and with the Federal Bureau of Investigation (FBI), claiming the doctor had committed several torts and crimes, including fraud, perjury, extortion, racketeering, obstruction of justice and acceptance of bribes from Nair's former wife. The same day that these complaints were filed, Mr. Nair went onto a radio news program on which he accused Dr. Burrill of committing perjury, extortion, and practicing psychology and prescribing medication without a license.

Dr. Burrill sued Mr. Nair for defamation, and Nair moved to strike the complaint as a SLAPP. California's Third District Court of Appeal rejected Mr. Nair's motion because it determined that the privilege did not apply “to a report of the charges made in a citizen's criminal complaint, made by the citizen who filed that complaint, when there is no evidence any official action has been taken with respect to the complaint.” The court also pointed out that Restatement Second of Torts, section 611, precludes application of the fair report privilege to the contents of preliminary pleadings — the rationale being that, when no judicial action has yet been taken, applying the privilege to such pleadings would permit people to file complaints, then not follow through with them, simply in order to be able to publicize things with impunity that would normally render them subject to liability.

The court rejected plaintiffs' Burrill and Restatement Second of Torts arguments. As to these, the court noted that Mr. Nair's complaints to the police and the FBI were not yet filed in any court; thus, they did not concern judicial proceedings, as required for the fair report privilege to apply. As for the Restatement Second of Torts, section 611, there is disagreement among the jurisdictions as to whether its teachings should be followed, and California courts have specifically rejected them, instead treating complaints and pleadings as part of a “judicial proceeding,” said the court.

Last, the court had to determine whether attorneys Kabateck and Hutchinson had made “fair and true” statements to the two news programs within the meaning of that phrase in the statute. The court stated in this regard that “'[f]air and true' in this context does not refer to the truth or accuracy of the matters asserted in the judicial proceedings, but rather to the accuracy of the challenged statements with respect to what occurred in the judicial proceedings.” Rollenhagen v. City of Orange (1981) 116 Cal.App.3d 414, 427. Because this is the inquiry, the truth of Cavalieri's allegations were not relevant; what mattered was whether the lawyers truthfully conveyed the substance of what she alleged in her pleadings. Kilgore v. Younger (1982) 30 Cal.3d 770, 795; McClatchy, supra, 189 Cal.App.3d at p. 975.

The plaintiffs argued, however, that the question the court should be asking was whether they were actually guilty of the things Cavalieri charged. If not, Drobot and the hospital asserted, Cavalieris' attorneys were liable for defaming them in the media when they repeated those of her charges that Drobot and the hospital did not admit to in their federal plea bargain: specifically, among others, that they used “counterfeit, unclean, unsafe, or non-FDA-approved hardware in spinal surgeries” and that they provided prostitutes to Senator Calderon as bribes or kickbacks. The court countered, “These are the wrong comparisons. The issue is not whether Kabateck's and Hutchinson's statements were fair and true communications about Drobot's federal plea agreement, but whether they were fair and true communications about the allegations in the Cavalieri complaint.”

Still, the court was careful to distinguish between fair and true reports of what is in a complaint and statements purporting to state as facts those things in the complaint. “More particularly,” stated the court, “the attorney defendants in this case are protected from liability under the fair report privilege in informing the news media that they have alleged that plaintiffs used counterfeit screws in spinal surgeries and supplied prostitutes to Senator Calderon, but they are not protected if they informed the media that such facts were true. The issue is whether the average viewer or listener of the media reports would understand the attorneys' statements as communications about the Cavalieri complaint (which would be privileged) or as facts (which would not).”

Looking at the videos and recordings of the shows on which the two attorneys made their allegedly defamatory remarks, the court was convinced that the privilege applied. This in spite of the fact that not every statement was prefaced with or followed by an explanation that these things had been alleged in Cavalieri's complaint, but had not yet been shown to be true. For example, in Kabateck's initial statement in the television program, he referred to a conspiracy among the hospitals and doctors that “we allege in the complaint.” Later comments did not have this type of language attached to them, but references were frequently made to the Cavalieri lawsuit, and images of the complaint were frequently shown in the background.

“The average person watching the report in its entirety would reasonably understand that Kabateck was referring to the allegations in the lawsuit he filed on Cavalieri's behalf,” said the court. “Although some statements, when viewed in isolation, could be understood to communicate the allegedly defamatory matter as facts, not mere allegations of facts, when the media reports are viewed in their entirety and in the context in which they were made, the only reasonable conclusion is that the statements refer to the allegations made in the Cavalieri complaint.” The court came to the same conclusion regarding the statements made on the radio program.

The court did not address the plaintiffs' allegations that the attorneys' statements to the media were made with bad intent, as it concluded that when the fair report privilege applies, it is absolute. This being so, the court had no reason to delve into the attorneys' motives or whether their statements were made with malice.

A Free Pass?

Does this result make it too easy for lawyers and others involved in judicial proceedings to make disparaging remarks about the opposing side for public consumption? The plaintiffs thought so, arguing that allowing attorneys Kabateck and Hutchinson to malign them in the media “effectively immunize[d] the sort of litigation through the press that cases applying the litigation privilege have condemned.” The court was not unsympathetic to this concern, but in weighing this danger against the public's interest in knowing what is happening in the judicial system, the public won out. Further, California's legislature has encoded a (supposed) disincentive for attorneys to litigate in the press, found in California State Bar Rules of Professional Conduct.

In those rules, the legislature provided that “[a] member [of the State Bar] who is participating or has participated in the investigation or litigation of a matter shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the member knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.” Cal. Rules of Professional Conduct, rule 5-120(A). (Of course, it might well be argued that, in this matter, the attorneys' statements to the two media outlets could prejudice the factfinder in any upcoming judicial proceedings.)

The court also pointed out another check on attorneys and litigants who might file frivolous claims in order to smear with impunity the reputations of those they oppose: By doing so, they make themselves subject to suit for malicious prosecution for bringing the underlying lawsuit.

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Janice G. Inman is Editor-in-Chief of this newsletter.