Last year in 2020, the California Legislature amended Civil Code 47, adding the new subsection (b)(5).
Effective January 1, 2021, this new subsection reads in full as follows:
“This subdivision does not make privileged any communication between a person and a law enforcement agency in which the person makes a false report that another person has committed, or is in the act of committing, a criminal act or is engaged in an activity requiring law enforcement intervention, knowing that the report is false, or with reckless disregard for the truth or falsity of the report.”
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California Civil Code 47(b) codifies the common law litigation privilege:
“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.”
“[T]he only tort claim… falling outside the privilege established by section 47(b) is malicious prosecution.” Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361.
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Until this year, California courts routinely interpreted Civil Code 47(b) to encompass and immunize all reports of alleged wrongdoing to government agencies, including law enforcement:
“When a citizen contacts law enforcement to report a suspected crime, the privilege in Civil Code section 47, subdivision (b) (hereafter section 47(b)) bars causes of action for false imprisonment and intentional infliction of emotional distress, even if the police report was made maliciously.” Cox v. Griffin (2019) 34 Cal.App.5th 440, 442-443 (citing Mulder v. Pilot Air Freight (2004) 32 Cal.4th 384, 387; Hagberg at 365).
“[C]itizen reports of suspected criminal activity to law enforcement personnel enjoy an absolute privilege of immunity from civil liability under section 47(b).” Kesmodel v. Rand (2004) 119 Cal.App.4th 1128, 1135.
This absolute privilege has been routinely applied to dismiss claims targeting a report to law enforcement, even when the plaintiff alleges that the report was knowingly false when made and caused harm to the plaintiff, even when the plaintiff alleges that the report was perjurious or illegal. Hagberg, supra, at 360-361; Mulder at 387 [“we agree with the great weight of authority in our Courts of Appeal that concludes the privilege established by section 47(b) applies to a communication ‘concerning possible wrongdoing, made to an official governmental agency such as a local police department, … [if the ] communication is designed to prompt action by that entity….’”] [quoting Hagberg at 364]; Silberg v. Anderson (1990) 50 Cal.3d 205, 216 [“…statements published in proceedings other than divorce actions may be malicious and still fall within the mantle of protection provided by the privilege”]; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 920 [“We conclude from all this that communications made in connection with litigation do not necessarily fall outside the privilege simply because they are, or are alleged to be, fraudulent, perjurious, unethical, or even illegal”].
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“[T]he absolute privilege established by section 47(b) serves the important public policy of assuring free access to the courts and other official proceedings. It is intended to ‘assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.’” Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (quoting Imig v. Ferrar (1977) 70 Cal.App.3d 48, 55).
“[I]n immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.” Silberg at 214 (citing Kachig v. Boothe (1971) 22 Cal.App.3d 626, 640–641; Pico v. Cohn (1891) 91 Cal. 129).
In creating such a privilege, California courts follow U.S. Supreme Court caselaw interpreting and applying a similar such privilege:
“In a decision that applied a similar common law litigation privilege, the United States Supreme Court echoed these policy considerations: ‘the dictates of public policy … require[ ] that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible’ [citation].’” Silberg at 213-214 (quoting Briscoe v. LaHue (1983) 460 U.S. 325, 333).
“Thus, witnesses should be free from the fear of protracted and costly lawsuits which otherwise might cause them either to distort their testimony or refuse to testify altogether.” Ibid.; also citing Pettitt v. Levy (1972) 28 Cal.App.3d 484, 490-491).
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With this new subsection (5) added to Civil Code 47(b), the foregoing authority has now been superseded by statute.
It remains to be seen how California courts will handle anti-SLAPP motions filed in response to such claims, given prior caselaw holding that the protections of the anti-SLAPP statute at C.C.P. 425.16(e)(1) and (2) are “coextensive with” those of Civil Code 47(b). A.F. Brown Electrical Contractor v. Rhino Electrical Supply (2006) 137 Cal.App.4th 1118, 1125-1126 (quoting Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1467, fn. 3). “Thus, ‘[j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b), …such statements are equally entitled to the benefits of section 425.16’” (emphasis added). A.F. Brown, supra, 137 Cal.App.4th at 1126 (quoting Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115). Will California courts hold that a claim targeting the filing of a false police report fall outside SLAPP protection because they now fall outside the protection of Civil Code 47(b) or will California courts hold that such claims still satisfy the first prong of the anti-SLAPP analysis?
The California Legislature simultaneously amended the Ralph Civil Rights Act – Civil Code § 51.7 – to permit a plaintiff to sue a defendant for intimidating and/or threatening violence against the plaintiff via a false report to law enforcement. Under the new Civil Code § 51.7(b)(2): “For purposes of this subdivision, ‘intimidation by threat of violence’ includes, but is not limited to, making or threatening to make a claim or report to a peace officer or law enforcement agency that falsely alleges that another person has engaged in unlawful activity or in an activity that requires law enforcement intervention, knowing that the claim or report is false, or with reckless disregard for the truth or falsity of the claim or report.”
It also amended Penal Code § 653y to criminally punish individuals who knowingly used or allowed the use of the 911 emergency system “for the purpose of harassing another person” in a manner similar to a hate crime (as described in Penal Code §§ 422.55 or 422.85), then that individual faces criminal misdemeanor charges, fines, and/or jail time.
As explained in the Legislative reports leading up to the enactment of this new subsection:
“The purpose of this bill is to make a number of changes in criminal and civil law to discourage individuals from using 911 or other communications with law enforcement to harass a person because that person belongs to a protected class.” Aug. 7, 2020 Senate Committee on Public Safety, discussion of AB 1775.
As further explained in the Comments section of this Report:
“1. Need for This Bill
According to the author:
COMMENTS
There has been increasing media coverage of so called “living while black” stories, where people of color are viewed with suspicion, subjected to 911 calls, and ultimately confronted by police officers or armed civilians for simply existing in public spaces. Although video and social media coverage of these incidents have proliferated, the individual callers rarely face legal consequences, while the person of color faces the harm and stress of being racially profiled and being forced to justify their presence in a public or private space.
The 911 emergency system has long been used to harass people of color, and this bill seeks to create a disincentive for this weaponizing of our emergency system. Using the emergency system in this way is not only a waste of taxpayer resources, but also puts law enforcement in danger by requiring them to arrive at a tense, racially charged situation in which they would not otherwise intervene. This legislation facilitates stronger punitive measures for those who refuse to eradicate their own conscious or subconscious racial biases and reprehensibly utilize law enforcement to persecute other people.
AB 1775 addresses the need to deter discriminatory unlawful calls to law enforcement, and the imperative to prevent individuals from using emergency services as their “personal concierge” to harass others. Additionally, this legislation balances California’s commitment to decreasing incarceration rates, by imposing higher monetary fines instead of imprisoning violators for a draconian amount of time.” Id.
The Legislature specifically amended Civil Code 47(b) and the Ralph Civil Rights Act to ensure that harmed parties could file civil claims and avoid the defense of absolute civil immunity:
“This bill also amends a Civil Code section on privileged communications to make it clear that making a false report to law enforcement stating that another is committing an act that needs intervention is not a privileged communication.
It also amends the Ralph Civil Rights Act to make it clear that ‘intimidation by threat of violence’ includes making or threatening to make a report to a law enforcement agency that falsely alleges that another person is engaged in unlawful activity.
… Under existing law, such victims may sue for defamation or intentional infliction of emotional distress. However, the defendant can raise the defense that the report is privileged under Civil Code section 47, which “gives all persons the right to report crimes to the police, the local prosecutor or an appropriate regulatory agency, even if the report is made in bad faith.” (Cabesuela v. Browning-Ferris Indus. (1998) 68 Cal.App.4th 101, 112, citing cases describing the privilege as absolute.) To preclude this defense, the bill would specifically provide that deliberately false police reports are not privileged.
The bill enables victims of false police reports to seek redress using an existing statutory framework, the Ralph Civil Rights Act of 1976 (Act), which “provide[s] a civil remedy for hate crimes.” (D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836, 844)….”
This bill thus establishes in civil law a deterrent against 911 calls predicated on discriminatory animus. This is an important step in addressing the problem of over-policing and excessive use of force in communities of color….”
Per further legislative comments, it appears that the California Legislature passed these statutes in response to news reports of individuals wrongly using police and specifically the 911 emergency telephone system to harass people of color:
“There has been increasing media coverage of so called ‘living while black’ stories, where people of color are viewed with suspicion, subjected to 911 calls, and ultimately confronted by police officers or armed civilians for simply existing in public spaces. Although video and social media coverage of these incidents have proliferated, the individual callers rarely face legal consequences, while the person of color faces the harm and stress of being racially profiled and being forced to justify their presence in a public or private space.
The 911 emergency system has long been used to harass people of color, and this bill seeks to create a disincentive for this weaponizing of our emergency system. Using the emergency system in this way is not only a waste of taxpayer resources, but also puts law enforcement in danger by requiring them to arrive at a tense, racially charged situation in which they would not otherwise intervene. This legislation facilitates stronger punitive measures for those who refuse to eradicate their own conscious or subconscious racial biases and reprehensibly utilize law enforcement to persecute other people.
AB 1775 addresses the need to deter discriminatory unlawful calls to law enforcement, and the imperative to prevent individuals from using emergency services as their ‘personal concierge’ to harass others. Additionally, this legislation balances California’s commitment to decreasing incarceration rates, by imposing higher monetary fines instead of imprisoning violators for a draconian amount of time.”
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Examining the interplay between these three amendments, the Legislature has lifted the immunity defense for all individuals harmed by knowingly false reports to law enforcement but the additional attorneys’ fee hook only applies to civil rights claims under the Ralph Civil Rights Act. Likewise, criminal punishment only lies for malicious use of the 911 system and then, only when it is used as a statutorily-defined hate crime.
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