Lebbos v. State Bar

Citations: 165 Cal. App. 3d 656; 211 Cal. Rptr. 847; 1985 Cal. App. LEXIS 1755Docket: A022497

Court: California Court of Appeal; March 14, 1985; California; State Appellate Court

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The Court of Appeals of California affirmed judgments favoring the State Bar of California and the Santa Clara County Bar Association in a case involving attorney Betsy Warren Lebbos. The court ruled that the forwarding of client complaints against Lebbos by the county bar to the State Bar, as well as the subsequent investigation, did not infringe upon her civil rights, as these actions are protected by the absolute privilege under Civil Code section 47, subdivision 2. The court also determined that the investigation did not amount to a prosecution, thus failing to support a claim for malicious prosecution.

Lebbos, an attorney practicing family law, faced approximately 24 client complaints primarily related to fee disputes between 1978 and 1979. The county bar association forwarded these complaints to the State Bar, which then investigated them, interviewing clients and suggesting they withhold payment of any outstanding fees to Lebbos. Following an informal hearing in October 1979, she was cleared of any misconduct allegations.

Lebbos filed her initial complaint in March 1980, which she never served to the defendants, and subsequently amended it multiple times. The third amended complaint included eight causes of action: civil rights violation under 42 U.S.C. § 1983, breach of confidentiality under Government Code § 815.6, malicious prosecution, abuse of process, interference with contractual relations, interference with prospective economic advantage, intentional infliction of emotional distress, and negligence. The trial court sustained the defendants’ demurrers without leave to amend, leading to the appeal and ultimate affirmation of the judgments.

On March 18, 1983, the court sustained the defendants' demurrers to Lebbos' third amended complaint without leave to amend, leading to judgments in favor of the defendants. Lebbos' first cause of action was based on 42 U.S.C. § 1983, alleging that the defendants denied her constitutional rights, including equal protection, due process, freedom of speech and association, access to courts, and privacy. However, she failed to adequately plead the necessary elements for a § 1983 claim against the State Bar or the SCCBA: (1) deprivation of a right secured by the Constitution and laws of the United States, and (2) that the defendants acted "under color of" state law. The Supreme Court defines "under color of" state law as a misuse of power granted by state law that is possible only because the wrongdoer holds state authority. Lebbos did not provide specific facts demonstrating that the SCCBA was acting under state authority; rather, her allegations suggested it was functioning as a private entity. The only specific action she cited was the forwarding of complaints against her to the State Bar, recognizing the SCCBA as a private nonprofit corporation. The mere incorporation under state laws does not equate to state action for § 1983 purposes. Additionally, her claims of conspiracy with the State Bar were deemed insufficient due to the lack of particularized allegations detailing overt acts of conspiracy. Thus, Lebbos did not meet the pleading requirements for conspiracy as established in prior case law.

Lebbos alleges that the only interaction between the SCCBA and the State Bar was the forwarding of complaints for prosecution, asserting that this constitutes a conspiracy. However, it is established that a private entity does not conspire with a state official merely by requesting action. The SCCBA argues that allowing civil rights claims in such contexts could hinder the right of citizens to petition the government and that Lebbos' complaint lacks the necessary elements for a cause of action under 42 U.S.C. § 1983, justifying the trial court's dismissal of the claim against the SCCBA.

Lebbos contends that her allegations against the State Bar and its officials are sufficient to establish a cause of action under § 1983 and disputes the applicability of quasi-judicial immunity for the State Bar's actions, claiming that immunity should not extend to actions outside its prosecutorial authority. However, case law, including Clark v. State of Washington, supports that the State Bar, as part of the judicial process, is entitled to quasi-judicial immunity similar to prosecuting attorneys. The key question is whether the State Bar's investigation of Lebbos, including communication with complainants, falls within its prosecutorial authority. Precedent indicates that investigatory activities, such as interviewing witnesses, are integral to a prosecutor’s duties and thus protected by immunity under § 1983. The court has affirmed that individuals fulfilling prosecutorial roles, like investigating misconduct, are similarly shielded from liability.

The State Bar holds the authority to investigate complaints of attorney misconduct to determine if disciplinary violations have occurred, necessitating contact with complainants. During these investigations, complainants must be informed that the State Bar is examining the attorney in question. The actions taken by the State Bar and its defendants in investigating 24 initial complaints, along with three subsequent ones, fall within their prosecutorial authority, granting them immunity from prosecution under 42 U.S.C. § 1983. The State Bar's demurrer against the civil rights action was properly upheld.

Lebbos argues that the absolute privilege under Civil Code § 47, subdivision 2, does not apply to the SCCBA or the State Bar because their actions were not sufficiently linked to an "official proceeding." However, this argument is unfounded. Section 47, subdivision 2, protects publications made in legislative, judicial, or other official proceedings, and is absolute regardless of malice. This privilege extends to quasi-judicial proceedings and has been applied to various tort actions, including defamation and intentional infliction of emotional distress.

For the privilege to apply, four conditions must be met: the publication must occur in an official proceeding, be logically related to the action, aim to achieve the proceeding's objectives, and involve authorized participants. In this case, the actions of the defendants—forwarding client complaints to the State Bar and notifying complainants—satisfy these conditions. Lebbos's allegations against the SCCBA, which assert malice and intent to injure, are intrinsically linked to the State Bar's investigation, thus classifying the informal complaints as part of "official proceedings" protected by § 47, subdivision 2.

Communications intended to prompt an investigation by an official agency are absolutely privileged, as established in Long v. Pinto. Investigations into potential disciplinary violations serve two objectives: assessing whether there is enough evidence for an order to show cause and allowing public complaints to be registered. The absolute privilege also extends to preliminary interviews with potential witnesses in quasi-judicial proceedings, as noted in Pettitt v. Levy. In this context, complainants are considered potential witnesses. 

The SCCBA communicated solely with the State Bar, which is responsible for investigating attorney misconduct, and with complainants. All conditions for absolute privilege as outlined in Chen are satisfied regarding the SCCBA's actions. Even if these actions were taken with malice, they remain privileged under Civil Code section 47, subdivision 2. Consequently, the trial court properly upheld the SCCBA's demurrer against several causes of action, including violation of mandatory duty and intentional infliction of emotional distress. 

The State Bar's actions, including direct communication with complainants and advising them regarding fees owed to Lebbos, were part of a preliminary investigation and thus met the criteria for absolute immunity. Lebbos’s claims for malicious prosecution against the SCCBA and the State Bar were deemed unfounded, as the investigations did not constitute 'prosecution' in the context of malicious prosecution claims, since they did not lead to formal proceedings affecting legally protected interests.

Lebbos objected to the informal investigation and proceedings conducted by the State Bar, which aimed to assess whether sufficient evidence existed to issue an order to show cause for attorney disciplinary actions. The investigation referee could hold informal hearings and had the authority to either terminate the investigation for lack of evidence or issue an order to show cause, but the only punitive measure available was a nonpublic admonition, which did not equate to formal discipline. Formal proceedings only commence with an order to show cause, and sanctions, including suspension or disbarment, can only be imposed by the California Supreme Court after formal disciplinary proceedings. Lebbos claimed to have been exonerated during the investigation hearing, and since no order to show cause was issued, no formal proceedings were initiated. Consequently, the investigation concluded without any action that could harm her legally protected interests, negating her claim for malicious prosecution. The superior court correctly sustained the demurrers from the SCCBA and the State Bar regarding this claim. The appeal was deemed nearly frivolous, as the county bar association appropriately forwarded client complaints to the State Bar, which then conducted an investigation as required. The judgments were affirmed, and a petition for review by the Supreme Court was denied on May 22, 1985.

A public entity is liable for injuries resulting from its failure to fulfill a mandatory duty imposed by law designed to prevent specific types of injuries. Section 815.6 expands tort liability for public entities that neglect official responsibilities. However, Civil Code section 47, subdivision 2, provides immunity for actions related to publications during protected proceedings, indicating that it bars claims for breach of mandatory duty involving communications in quasi-judicial disciplinary investigations. Government Code section 815, subdivision b, further clarifies that any liability under section 815 is subject to statutory immunities and defenses available to public entities.

Lebbos' claim against the SCCBA fails because section 815.6 only applies to governmental entities, and she admits that the SCCBA is a private nonprofit corporation. She does not allege any facts to suggest the SCCBA acted as a public entity or under state law. Her claim against the State Bar is also unsupported, as State Bar procedures permit personnel to communicate with complainants during disciplinary investigations.

Common law immunity protects judges and others performing judicial functions from damages, even for actions that may be libelous or exceed jurisdiction, provided there is not a total absence of jurisdiction. This immunity extends to State Bar officers in their prosecutorial roles, even if their actions were malicious or beyond their jurisdiction. Moreover, distinguishing between absolute privilege in official proceedings and the initiation of malicious prosecution is vital; the latter requires actual initiation of civil proceedings that adversely affect another's legal rights. If no such proceedings arise from the publications, a claim for malicious prosecution is not valid.