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Court of Appeal, Second District, Division 4, California.

Jack W. KOENIG, Plaintiff and Appellant, v. Paul Sheldon FOOTE et al., Defendants and Respondents.

No. B061134.*

Decided: August 06, 1993

Robert E. Guilford, Los Angeles, for plaintiff and appellant. Louise C. Rishoff, in pro. per. Daniels, Baratta & Fine, Laurie S. Temkin, and Lance Orloff, Los Angeles, for defendants and respondents.

In this appeal we review the merits of the defendants' reliance on the litigation privilege and the interested persons privilege pursuant to Civil Code section 47, subdivisions 2 and 3.1  We conclude:  (1) the filing of an interrogatory response contrary to Code of Civil Procedure section 2030, subdivision (j) defeats reliance on the litigation privilege;  and, (2) malicious republication of a libelous statement beyond the scope of the litigation in which it was made bars application of the interested persons privilege.

Plaintiff Jack W. Koenig brought an action against Louise Rishoff and Paul Sheldon Foote for libel and intentional infliction of emotional distress.   Defendants' demurrers to the second amended complaint (the complaint) were sustained without leave to amend.   Koenig appeals from the ensuing judgment of dismissal.2  Defendant Rishoff requests sanctions on the ground that the appeal is frivolous.  (Code Civ.Proc., § 907.)

We hold the demurrers to the libel cause of action were improperly sustained, and therefore we reverse with directions to the trial court to overrule those demurrers and allow defendants to answer.   We affirm the judgment of dismissal of the cause of action for intentional infliction of emotional distress.   We deny the request for sanctions.


 In determining whether the complaint stated facts sufficient to constitute a cause of action for libel, we assume the truth of all properly pleaded material allegations of the complaint.  (Silberg v. Anderson (1990) 50 Cal.3d 205, 210, 266 Cal.Rptr. 638, 786 P.2d 365.)   While the allegations of the complaint must be accepted as true, matters subject to judicial notice may also be considered.  (Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1605–1606, 284 Cal.Rptr. 244;  Dryden v. Tri–Valley Growers (1977) 65 Cal.App.3d 990, 997, 135 Cal.Rptr. 720;  Able v. Van Der Zee (1967) 256 Cal.App.2d 728, 734, 64 Cal.Rptr. 481.)   As relevant to this case, libel is “a false and unprivileged publication by writing ․ which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.”  (Civ.Code, § 45.)   Whether a privileged occasion exists is to be determined preliminarily by the trial court.  (Weingarten v. Block (1980) 102 Cal.App.3d 129, 134–135, and fn. 3, 162 Cal.Rptr. 701.)

Under the cause of action for libel, the complaint stated that Koenig, a professional educator, and defendant Rishoff were members of the Agoura Hills City Council in 1989.   Koenig received annual remuneration for his services to the city.   At some point, defendants Rishoff and Foote, each being the agent of the other, conspired to defame Koenig by publishing a libelous statement under color of judicial proceedings.   To accomplish this goal, defendants jointly drafted a declaration “ostensibly in response to an Interrogatory propounded by the Defendants in the case of Rishoff v. Dynda, et al., [L.A.Super.Ct. No.] NWC044747 ․, but in fact unresponsive and irrelevant to the Interrogatory to which addressed [sic ], and having no reasonable connection with or logical relation to those proceedings.”   The declaration was published for the ulterior purpose of immediate dissemination to third persons to influence the general public and cause Koenig to fail to win reelection.   The declaration asserted that Koenig secretly supported a recall petition aimed at his four city council colleagues during the time that he publicly declared his support for these same officials.   The declaration was defamatory on its face because it knowingly and falsely accused Koenig of “personal dishonesty, deceitfulness, and false and devious behavior, and of being a hypocrite.”

As further alleged, Foote signed the declaration on or about October 9, 1989.   On October 10, 1989, Rishoff and Doe defendants caused or appeared to cause the declaration to be filed in the Rishoff action.  Code of Civil Procedure section 2030, subdivision (j) prohibited the filing.   The declaration was not served on Rishoff opposing counsel.

According to the complaint, Foote immediately delivered a copy of the declaration, bearing the county clerk's conforming stamp, to David Chagall.   Foote's handwritten note on the copy stated:  “ ‘David, reporters will telephone you today to discuss this.   I needed this for tonight's meeting (“debates”).’ ”   On this same date, Foote called a press conference at which he distributed copies of the declaration to newspaper reporters.   That evening, Foote distributed copies of the declaration to persons attending a debate at which Rishoff was present.   Ensuing newspaper articles and editorial letters ascribed defamatory meanings to the declaration.

It was alleged that defendants published and republished the declaration approximately three weeks before the city council election with the intent that the resulting widespread publicity would cause Koenig's defeat and would harm, vex, and annoy him.   Defendants were motivated by malice, oppression, hatred, ill will, political jealousy, rivalry, spite, and desire for revenge for imagined wrongs.   Alternatively, the declaration was published and republished with careless and reckless disregard of whether it was true and with careless and reckless disregard of the effects of the declaration on Koenig's reelection campaign and reputation;  or with a lack of good faith belief in its truth;  or with the knowledge that defendants had no cause to believe it to be true;  or with the knowledge that it was false.

The declaration was read by constituents and by those having no interest in city politics or in the Rishoff v. Dynda action.   Koenig suffered hatred, contempt, ridicule, obloquy, and shunning by his friends and neighbors because they believed as a result of the declaration that he was a dishonest, devious, and deceitful person.   As a direct result of the publication and republication of the declaration, Koenig lost the election.

The cause of action designated as intentional infliction of emotional distress incorporated the above allegations and stated that the defendants' conduct had been “intentional and malicious, extreme and outrageous, and done for the purpose of causing plaintiff to suffer humiliation, mental anguish, and emotional and physical distress;  or in reckless disregard of the probability of such result.”   As a proximate result of the acts alleged, Koenig suffered severe emotional distress.   The complaint listed specific physical symptoms.

The complaint prayed for special damages not less than $14,400 for the failure to win reelection, $500,000 general damages for hurt feelings and loss of reputation, punitive damages based on the alleged malice, and costs and attorney's fees.   The complaint did not quote from or attach the declaration or any other document to which it referred.

In demurring to the complaint, Foote requested the trial court take judicial notice of the declaration, a copy of which he included as an exhibit.   Koenig objected.   The trial court noted there were no serious allegations regarding the authenticity of the copy and considered it.3

With regard to the libel cause of action, the minute order indicates the trial court concluded that the declaration, made under penalty of perjury, was part of a judicial proceeding and thus its publication in that proceeding was absolutely privileged under section 47(2).   It further concluded that section 47(3), interested persons privilege, was available, stating:  “No showing, beside[s] the conclusion that [the publication to the press and general public] was done ․ with actual malice, with ill will and reckless disregard for truth.  [¶]  [Koenig] was a public official.   A matter of considerable public controversy was involved, and [Koenig] was in the middle of that controversy․”

With regard to the cause of action for intentional infliction of emotional distress, the minute order indicates the trial court determined Koenig had alleged only acts demonstrating criticism of the activities of a public official and had failed to state more than conclusions that the declaration and publication had been made with actual malice and that the conduct was outside the bounds usually tolerated in a civilized society.


Koenig contends it was error to sustain the demurrers because sufficient facts were alleged to state causes of action for both libel and intentional infliction of emotional distress, and to show that the section 47(2) and 47(3) exceptions did not apply.   Based solely on the allegation of the complaint, we conclude that the original publication by filing the Foote declaration in the Rishoff action was not privileged under section 47(2) (litigation privilege), and that the complaint alleged sufficient facts to avoid application of section 47(3) (qualified privilege of interested persons) to the republication by dissemination to the media and the general public.

 Cause of Action for Libel

Applicability of Section 47(2)—Litigation Privilege

 The section 47(2) exception protects publications even when made with actual malice or with the intent to do harm.  (Albertson v. Raboff (1956) 46 Cal.2d 375, 379, 295 P.2d 405.)   A principal purpose of the privilege is to afford participants freedom of access to the courts without fear of subsequent derivative tort actions that could hinder efforts to investigate and remedy wrongdoing.  (Silberg v. Anderson, supra, 50 Cal.3d at p. 213, 266 Cal.Rptr. 638, 786 P.2d 365.)   The privilege applies to a communication “(1) made in judicial or quasi-judicial proceedings;  (2) by litigants or other participants authorized by law;  (3) to achieve the objects of the litigation;  and (4) that [has] some connection or logical relation to the action.  [Citations.]”  (Id. at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365.)   If these criteria are met, the privilege is available “even though the publication is made outside the courtroom and no function of the court or its officers is involved.  [Citations.]”  (Ibid.)

 The heading of the eight-page declaration sets forth that the document is in response to Interrogatory No. 15 of a first set of interrogatories by defendants Dynda and Chagall in the action Rishoff v. Dynda, No. NWC044747.   The declaration contains one express reference to the Rishoff action:  “Last January, voters received letters and recall petitions in the mail alleging six grounds for removal of all councilmembers, except for [Koenig].   Particularly alarming were the charge of Brown Act violations and the subsequent libel suit brought by a councilmember (and an attorney) Louise Rishoff against two recall proponents (David Chagall and Carole Dynda) in response to these charges.”  (Emphasis added.)   A second reference to Chagall places him at a March 5, 1989, recall meeting attended by Koenig, declarant Foote, and others at a private home.   The balance of the declaration details Foote's involvement on behalf of the recall campaign, Koenig's role in the effort, and how Foote came to reverse his position.   Foote states Koenig repeatedly alleged violations of the Ralph M. Brown Act.  (Gov.Code, § 54950 et seq.)

The complaint alleged the defendants drafted Foote's declaration, Foote signed it on October 9, Rishoff filed it on October 10, and then immediately disseminated it to third persons.   The proximity of the signing, filing, and dissemination tend to support Koenig's allegation that defendants filed the declaration “to escape liability for the defamation.”   Although section 47(2) is an absolute privilege not affected by malice or bad faith (Abraham v. Lancaster Community Hospital (1990) 217 Cal.App.3d 796, 810–811, 266 Cal.Rptr. 360), Koenig has essentially alleged that the filing of the declaration was only a ploy to obtain an immunity bath.

Silberg v. Anderson's four-part formula for the application of section 47(2) implicitly imposes the prerequisite that the communication be required or permitted by law.  (50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365.)   In Silberg, the Supreme Court explicitly relied on its earlier holding in Albertson v. Raboff, supra, 46 Cal.2d 375, 295 P.2d 405:  “Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.  [Citations.]”  (50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365, emphasis added.)   The Foote declaration is characterized as a response to an interrogatory and as such was impermissibly filed in the Rishoff v. Dynda action.  Code of Civil Procedure section 2030, subdivision (j) specifically provides that responses to interrogatories shall not be filed with the court.   Publication of the declaration by filing was simply not permitted.   Although the probable reason for the rule is to alleviate the shortage of storage capacity of court facilities the rule is no less mandatory by its terms.   Because the privilege is absolute, it is not unreasonable to require that all conditions for its operation be fulfilled.   Because the filing of Foote's declaration was not required or permitted, the litigation privilege is not operative, and the alleged malice of the defendants is an appropriate and relevant issue raised by the complaint.

Applicability of Section 47(3)—Interested Persons Privilege

 Because the press and the general public were not participants in, or otherwise connected with, the Rishoff action, the republications did not come within the protection of section 47(2).  (Susan A. v. County of Sonoma (1991) 2 Cal.App.4th 88, 93–95, 3 Cal.Rptr.2d 27.) 4

 Koenig contends that if the section 47(2) privilege does not apply, the complaint adequately stated that the republications of the declaration to the press and general public were accomplished with actual malice, so that the interested persons privilege available under section 47(3) does not apply.   We agree.

 In order to avoid application of the section 47(3) privilege, a plaintiff must allege “actual malice” (Kapellas v. Kofman (1969) 1 Cal.3d 20, 28, 81 Cal.Rptr. 360, 459 P.2d 912), that is, that the statement was made with knowledge that it was false or with reckless disregard of whether or not it was false.  (New York Times Co. v. Sullivan (1964) 376 U.S. 254, 279–280, 84 S.Ct. 710, 725–726, 11 L.Ed.2d 686;  cf. Antonovich v. Superior Court (1991) 234 Cal.App.3d 1041, 1047–1048, 285 Cal.Rptr. 863.)   Specific facts which would rebut the existence of a privilege must be pleaded.  (Maidman v. Jewish Publications, Inc. (1960) 54 Cal.2d 643, 653–654, 7 Cal.Rptr. 617, 355 P.2d 265, overruled on an unrelated ground in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 732, fn. 18, 257 Cal.Rptr. 708, 771 P.2d 406.)

In addition to invoking the conclusionary terms of actual malice, Koenig alleged that Rishoff and Foote were coconspirators and agents of one another in producing and disseminating the declaration.  (Farr v. Bramblett (1955) 132 Cal.App.2d 36, 47, 281 P.2d 372, disapproved on unrelated grounds in Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 114, 77 Cal.Rptr. 243, 453 P.2d 747.)   The complaint quoted Foote's handwritten note to Chagall, indicating an intent that the information in the declaration be given to the press and that Foote would make some undisclosed use of it at a debate.   Given the allegations of the complaint and the contents of the declaration, it appears that Chagall was both a defendant in the Rishoff action and cohort of Foote in the dissemination of the information of the declaration to the press.   The complaint alleged that a press conference was called shortly after the declaration was signed and filed, although never served on the Rishoff defendants.   The information was disseminated at both forums.   Rishoff was alleged to have been present at the debate.   Koenig alleged that the repeated republication of the declaration was the result of political jealousy and rivalry, spite, personal animosity, hatred, and ill will, and was accomplished for revenge for imagined wrongs and to secure his defeat in the upcoming election.   He alleged that the declaration was understood to have a defamatory meaning as evidenced by newspaper reports and letters to the editor, and that he was defeated in his bid for reelection as a result of defendant's statements that he was personally dishonest, deceitful, had exhibited false and devious behavior, and was a hypocrite.   We conclude Koenig alleged sufficient facts which, if proven, would constitute actual malice.  (See, e.g., Kapellas v. Kofman, supra, 1 Cal.3d at pp. 28–29, 81 Cal.Rptr. 360, 459 P.2d 912.)   The complaint sufficiently apprised defendants of the issues.

Cause of Action for Intentional Infliction of Emotional Distress

 A cause of action for intentional infliction of emotional distress requires the plaintiff to plead conduct “so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.  [Citation.]”  (Melorich Builders, Inc. v. Superior Court (1984) 160 Cal.App.3d 931, 936, 207 Cal.Rptr. 47.)   Given the contents of the declaration, Koenig has not and cannot so plead.   The trial court properly sustained the demurrers to this cause of action without leave to amend.


The judgment of dismissal is reversed with directions to overrule the demurrers except as to the cause of action for intentional infliction of emotional distress.   Defendants' request for sanctions is denied.   Costs on appeal are awarded to plaintiff.


1.   Former Civil Code section 47, subdivisions 2 and 3, now designated without substantive change as section 47, subdivisions (b) and (c), provided:  “A privileged publication or broadcast is one made— ․  2.   In any ․ judicial proceeding․  [¶]  3.   In a communication, without malice, to a person interested therein, (1) by one who is also interested․”   For convenience, we will refer to these sections as 47(2) and 47(3), and further statutory references are to the Civil Code unless otherwise indicated.

2.   Plaintiff also appeals from the order sustaining the demurrers.   Such ruling is not appealable but is reviewed on appeal from the judgment of dismissal.  (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 878, 150 Cal.Rptr. 606.)

3.   Koenig does not contend on appeal that the document lacked authenticity.   The copy included in the record before us does not bear the handwritten note alleged in the complaint.

4.   Koenig did not include the press as defendants in his action, and the issue whether the fair comment privilege of section 47, subdivision (d) (formerly subd. 4) applied has not been raised.   We note that because the filing of the declaration was statutorily proscribed (Code Civ.Proc., § 2030, subd. (j)), the document achieved public record status only in a technical sense;  the filing was not necessary procedurally to advance the Rishoff action.   A functional analysis of acts asserted to be privileged most recently was applied in Buckley v. Fitzsimmons (1993) 509 U.S. 259, 113 S.Ct. 2606, 125 L.Ed.2d 209, where the Supreme Court determined that a prosecutor was not entitled to absolute immunity for acts not functionally related to his role as advocate for the state.   The court held that the conducting of a press conference by the prosecutor, in which he announced an indictment, was not an absolutely privileged act.  509 U.S. at ––––, 113 S.Ct. at 2617.

CHARLES S. VOGEL, Associate Justice.

ARLEIGH M. WOODS, P.J., and SOVEN, J., Assigned *, concur.

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