Mulder v. Pilot Air Freight 2/14/02 CA2/4

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B146633

Case Date: 05/16/2002

Preview:Filed 2/14/02

NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 FOUR

ROBERT P. MULDER, Plaintiff and Appellant, v. PILOT AIR FREIGHT et al., Defendants and Respondents.

No. B146633 (Super. Ct. No. BC212980)

APPEAL from a judgment of the Superior Court of Los Angeles County, Alexander H. Williams, III, Judge. Affirmed in part and reversed in part. Ezra Brutzkus Gubner, Robert Ezra and G. Michael Jackson for Plaintiff and Appellant. Bragg, Short, Serota & Kuluva and Sydnee R. Singer for Defendants and Respondents. ______________________

We are asked to decide whether the immunity provided by Civil Code section 47, subdivision (b) (section 47(b)) is absolute or qualified when applied to a report made to the police. We follow the weight of authority and conclude that the immunity is absolute. But we also conclude the trial court erred in denying plaintiff, Robert P. Mulder, leave to amend to add a cause of action for malicious prosecution, which is not barred by section 47(b). FACTUAL AND PROCEDURAL SUMMARY This is a suit between Mulder and Pilot Air Freight and one of its employees (Pilot). On its own motion, the trial court converted Pilot's motion for summary judgment to a motion for judgment on the pleadings because the sole issue was one of law: whether the privilege under section 47(b) is absolute or qualified. (See Stolz v. Wong Communications Limited Partnership (1994) 25 Cal.App.4th 1811, 1817.) "A motion for judgment on the pleadings, like a general demurrer, tests the allegations of the complaint or cross-complaint, supplemented by any matter of which the trial court takes judicial notice, to determine whether plaintiff or crosscomplainant has stated a cause of action. (Briggs v. Lawrence (1991) 230 Cal.App.3d 605, 610 [281 Cal.Rptr. 578].) Because the trial court's determination is made as a matter of law, we review the ruling de novo, assuming the truth of all material facts properly pled. (Berry v. City of Santa Barbara (1995) 40 Cal.App.4th 1075, 1082 [47 Cal.Rptr.2d 661].)" (Leko v. Cornerstone Bldg. Inspection Service (2001) 86 Cal.App.4th 1109, 1114.) We therefore confine our review to the allegations of the complaint. Mulder dealt in salvage. In 1997, Erick Moe, who purchased salvage, bought a number of palettes and boxes of salvage from Huy Nguyen, District Manager of Pilot. In 1998, Mr. Moe arranged to bring part of the salvage to Mulder's warehouse. They agreed that Mulder would sell the salvage for a commission. When Mulder sorted through the salvage delivered by Moe, he
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discovered a flight recorder with Patlong Aircraft markings, containing a bill of lading with the Patlong telephone number. Mulder contacted Patlong and was told that the recorder had been lost a year before. Patlong expressed interest in getting the recorder and told Mulder to contact Pilot and Same Day Right of Ways, who had shipped the parts to Pilot. Mulder contacted both companies and neither expressed any interest in the recorder. He passed this information on to Patlong. Mulder was contacted by defendant Steve Covert, who said he worked for Pilot. Covert asked Mulder how much he wanted for the recorder. Mulder asked for $5,000 and was told by Covert that Pilot would pay $500. Over the next several months, negotiations continued between Mulder and Covert. The two finally agreed on a price of $1,000, subject to approval by Pilot. Neither Pilot nor Covert told Mulder that the recorder was stolen, lost, or that it belonged to anyone else. In October 1998, Pilot filed a report with the Los Angeles Police Department, stating that the flight recorder was stolen and in Mulder's possession. Pilot did not tell the police that it sold the recorder through Nguyen to Moe. Mulder was not told about the stolen property report. In January 1999, Covert again offered to buy the flight recorder. Two undercover Los Angeles Police Officers entered Mulder's offices on January 6, 1999. They handed him a check for $1,000 (payable to a Robert Evans). They left, then returned with eight other officers and handcuffed and searched Mulder in front of employees and a customer. He was arrested for receiving stolen property. The criminal case against Mulder was dismissed. He then sued Pilot and Covert for false imprisonment and intentional infliction of emotional distress. Mulder alleged that the Pilot defendants made the police report in bad faith and with malice.

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Pilot moved for summary judgment or, in the alternative, summary adjudication. Among other arguments, Pilot contended the action was barred by the absolute privilege of section 47(b). Mulder opposed the motion. At the hearing, the trial court ruled that the motion would be converted to a motion for judgment on the pleadings because the question was very limited--whether the immunity for filing a police report is qualified or absolute under section 47(b). The trial court indicated a belief that the privilege is absolute, but invited further briefing by the parties. After further briefing, and a second hearing, the trial court said it would rule that the privilege is absolute, entitling defendants to judgment, but discussed Mulder's request for leave to amend to allege a cause of action for malicious prosecution. At first, the trial court seemed inclined to grant leave to amend, but after argument, it granted judgment on the pleadings without leave to amend. At a later hearing to resolve a dispute about the wording of the judgment, the trial court expressed a concern that leave to amend should have been granted. But by that time, Mulder had prepared a notice of appeal, and the trial court was concerned that it was without jurisdiction to grant leave to amend. With the approval of the trial court, the parties stipulated that the court did not have jurisdiction to modify the original order granting judgment on the pleadings without leave to amend. DISCUSSION I At oral argument, appellant argued that a cause of action for false imprisonment does not implicate the section 47(b) privilege because, unlike defamation, it does not involve a communication. Where a defendant personally confines a plaintiff, section 47(b) does not apply. That is not this case. Here, we

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have an arrest based on Pilot's police report. In California, a communication which results in arrest is privileged under section 47(b). Appellant attempts to distinguish between a communication to the authorities which results in an arrest, and conduct instigating or participating in the arrest. He contends the former comes within the absolute privilege of section 47(b), but the latter does not. The complaint alleges that Pilot not only filed a police report alleging that appellant was dealing in stolen merchandise, but that its employee Covert instigated and participated in the police sting which led to appellant's arrest. Appellant relies on the Restatement Second of Torts for this argument. The Restatement explains the concept of instigation in comment c to section 45A: "Instigation consists of words or acts which direct, request, invite or encourage the false imprisonment itself. In the case of an arrest, it is the equivalent, in words or conduct, of `Officer, arrest that man!' It is not enough for instigation that the actor has given information to the police about the commission of a crime, or has accused the other of committing it, so long as he leaves to the police the decision as to what shall be done about any arrest, without persuading or influencing them. Likewise it is not an instigation of a false arrest where the actor has requested the authorities to make a proper and lawful arrest, and has in no way invited or encouraged an improper one, or where he has requested an arrest at a time when it would be proper and lawful, and it is subsequently made at a time when it has become improper." (Rest.2d Torts,

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