Moradi v. Pimentel Private Security

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Filed 5/7/02
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or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
THIRD APPELLATE DISTRICT
(San Joaquin)
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ODETTE MORADI,
Plaintiff and Appellant,
v.
PIMENTEL PRIVATE SECURITY et al.,
Defendants and Respondents.
C037101
(Super. Ct. No. CV002078)
In Bardin v. Lockheed Aeronautical Systems Co. (1999)
70 Cal.App.4th 494 (Bardin), the Second District Court of Appeal
held that an employer enjoys absolute immunity from civil
liability for the disclosure of confidential information to a
law enforcement agency during a background investigation.
Plaintiff Odette Moradi, whose dream had been to become a
correctional officer, was rejected by the Department of
Corrections based on information supplied by her former
employer, Pimentel Private Security (Pimentel). She claims
Bardin is “bad law” and urges us to reject it.

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We conclude that Bardin is not the culprit; Government Code
section 1031.1, subdivision (b) is.1 As Bardin acknowledges,
subdivision (b) is internally inconsistent. (Bardin, supra,
70 Cal.App.4th at pp. 501-502.) We agree with the court in
Bardin that, saddled with an irreconcilable conflict in the
terms of the statute, we must rely on the broader context in
which it appears and the intent of the Legislature in passing
the statute. (Id. at p. 502.) We affirm the summary judgment
granted the employer based on its absolute immunity for the
various tort causes of action.
FACTS
The underlying facts, disputed or not, are irrelevant to
the disposition of this appeal. Suffice it to say, Moradi
worked as a private security guard for Pimentel for 16 months in
1993 and 1994. Before leaving Pimentel, she submitted an
application to become a correctional officer with the Department
of Corrections (Department). After conducting an extensive
background investigation, including a review of her personnel
file and interviews with her superiors at Pimentel, the
Department rejected her application. Her tenure at Pimentel,
though short, was marred with accusations of misconduct,
tardiness, unreliability, emotional instability, inappropriate
behavior, and failure to follow orders and company policies.
Her employer contends she was terminated; she claims she
1 All further statutory references are to the Government Code
unless otherwise indicated.

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resigned following the breakup of her relationship with the
owner’s son.
DISCUSSION
In 1993 the Legislature enacted section 1031.1 to help law
enforcement agencies obtain information about potential peace
officers during background investigations. “It is the intent of
the Legislature that law enforcement have access to pertinent
information about peace officer applicants in order to ensure
that qualified individuals with good moral character are
selected.” (Stats. 1993, ch. 135, § 2.) Based on law
enforcement agencies’ reports that it had become difficult, if
not impossible, to obtain information from previous employers,
the legislation provided employers immunity from civil
liability.
Section 1031.1, subdivision (b), as finally enacted,
provides: “In the absence of fraud or malice, no employer shall
be subject to any civil liability for any relevant cause of
action by virtue of releasing employment information required
pursuant to this section. Nothing in this section is intended
to, nor does in any way or manner, abrogate or lessen the
existing common law or statutory privileges and immunities of an
employer.” We must consider the scope of the privilege granted
the employer by subdivision (b). On appeal, we conduct de novo
review of questions of statutory construction.
(Western/California, Ltd. v. Dry Creek Joint Elementary School
Dist. (1996) 50 Cal.App.4th 1461, 1479.)

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We do not write on an empty slate. The Second Appellate
District resolved the identical issue in Bardin, supra,
70 Cal.App.4th 494. In Bardin, the plaintiff’s application to
become a police officer was rejected based on information the
Los Angeles Police Department received from her former employer,
Lockheed Aeronautical Systems Company, as a part of its
background investigation. In her complaint for breach of
contract and various tort causes of action, the plaintiff
alleged that Lockheed made false statements about her employment
without a good faith belief in the truth of the information.
The trial court granted Lockheed’s motion for summary judgment,
finding the employer had an absolute privilege under section
1031.1, subdivision (b). (Bardin, supra, 70 Cal.App.4th at
pp. 498-499.)
The Bardin court aptly observed that the first sentence of
subdivision (b) of section 1031.1, including the language “[i]n
the absence of fraud or malice,” provides employers with a
qualified or conditional privilege. The second sentence,
however, preserves the existing common law privileges and
immunities of an employer. (Bardin, supra, 70 Cal.App.4th at
pp. 501-502.) If, then, the existing privileges are absolute,
the subdivision is inconsistent because the first sentence
taketh away what the second sentence giveth. Bardin concluded
that the common law immunity as explained in O’Shea v. General
Telephone Co. (1987) 193 Cal.App.3d 1040 (O’Shea) did provide
employers absolute immunity and, therefore, subdivision (b) is

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ambiguous. (Bardin, supra, 70 Cal.App.4th at pp. 497-498.) We
agree.
O’Shea is quite clear. Section 1031 demands that peace
officers be of good moral character “as determined by a thorough
background investigation.” (O’Shea, supra, 193 Cal.App.3d at
p. 1048, italics omitted.) The court held that employers who
provide information during such an investigation have absolute
immunity from civil liability. “The [California Highway
Patrol], a governmental entity [citations], was conducting this
thorough background investigation regarding appellant’s fitness
when the allegedly defamatory statements were obtained. Such
inquiries and responses are protected by Civil Code section 47,
[former] subdivision 2 [now subdivision (b)]. Even unsolicited
communications from citizens to governmental agencies have been
held protected by the absolute privilege of Civil Code
section 47, subdivision 2. [Citations.] The rationale of those
cases is obvious in the case before us; it is to encourage the
utmost freedom of communication between citizens and public
authorities. The Legislature has wisely required a thorough
background investigation of the character of those who wish to
be peace officers. It is essential that former employers of
those considered for peace officer positions feel free to
discuss in detail the characteristics of their former employees,
now being considered for the extremely demanding tasks
undertaken by the peace officers of this state.” (O’Shea,
supra, 193 Cal.App.3d at p. 1048.)

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To resolve the ambiguity, the Bardin court attempted to
decipher the legislative intent from available legislative
history and from the findings of the Legislature. (Bardin,
supra, 70 Cal.App.4th at pp. 500-501.) Our own research of the
legislative history disclosed little more than what is obvious
from the findings and the language of section 1031.1.
What is clear is that law enforcement agencies, even in the
aftermath of O’Shea, continued to have difficulty obtaining
sufficient information from former employers during background
investigations. The statute includes the following legislative
finding: “Law enforcement agencies have increasingly
experienced refusals from employers to divulge information
pertinent to peace officer applicants even with signed release
waivers from applicants themselves, and this situation has
seriously affected law enforcement’s ability to conduct a
thorough background investigation.” (Stats. 1993, ch. 135,
§ 1.) Letters to the Assembly and Senate committees echoed the
same sentiment.
As a consequence, the Legislature added section 1031.1,
compelling an employer to provide information about a peace
officer applicant in response to a request by a law enforcement
agency provided the request is in writing, is accompanied by a
notarized authorization by the applicant releasing the employer
of liability, and is presented by an authorized representative
of the agency. (§ 1031.1, subd. (a).) Both the initial bill
and the first amended version provided an unambiguous absolute
immunity to the employer. Subdivision (b) of section 1031.1

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originally stated, “Any employer who discloses information in
accordance with this section shall be exempt from civil
liability.” (Sen. Bill No. 1097 (1993-1994 Reg. Sess.) § 3.)
The ambiguity arose in a subsequent amendment. As the
court in Bardin explained, the original language of
section 1031.1, subdivision (b) was deleted and the version now
before us mysteriously appeared. The court in Bardin did not
account for the change, probably because the legislative history
discloses few, if any, clues. In the April 12 amendment,
employers enjoyed absolute immunity; two weeks later, the
following language was substituted: “In the absence of fraud or
malice, no employer shall be subject to any civil liability for
any relevant cause of action by virtue of releasing employment
information required pursuant to this section. Nothing in this
section is intended to, nor does in any way or manner, abrogate
or lessen the existing common law or statutory privileges and
immunities of an employer.” (Sen. Amend. to Sen. Bill No. 1097
(1993-1994 Reg. Sess.) § 3, Apr. 28, 1993 (italics added).)
It appears the language was cribbed from Insurance Code
section 1873.2, which states: “In the absence of fraud or
malice, no insurer, or any employee or agent authorized by an
insurer to act on behalf of the insurer, and no authorized
governmental agency or its respective employees, shall be
subject to any civil liability for libel, slander, or any other
relevant cause of action by virtue of releasing or receiving any
information pursuant to Section 1873 or 1873.1. Nothing in this
article is intended to, nor does in any way or manner, abrogate

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or lessen the existing common law or statutory privileges and
immunities of an insurer, or any employee or agent authorized by
the insurer to act on behalf of the insurer, or of any
authorized governmental agency or its respective employees.”
Although there are no cases construing Insurance Code
section 1873.2, the Senate Committee on the Judiciary referred
to Insurance Code section 1873.2 and posed the question whether
section 1031.1, subdivision (b) should be similarly refined.
(Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1097 (1993-
1994 Reg. Sess.) as amended Apr. 12, 1993.) Hence, while the
ambiguity can be traced to Insurance Code section 1873.2,
evidence of legislative intent in incorporating the same
language into section 1031.1, particularly in light of O’Shea,
is lacking.
We must, therefore, rely on the context in which the
language appears and “‘“‘the wider historical circumstances of
its enactment.’”’” (Bardin, supra, 70 Cal.App.4th at p. 502.)
The purpose of the legislation is transparent. Law enforcement
agencies were frustrated by their inability to obtain
information about applicants from former employers. Construing
the language to accord the broadest possible immunity for
employers comports with the legislative purpose of facilitating
the disclosure of information about applicants for peace officer
positions to assure the candidates selected are of good moral
character.
In Bardin, the court relied on Fremont Comp. Ins. Co. v.
Superior Court (1996) 44 Cal.App.4th 867 (Fremont), a case

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involving immunities accorded insurers who report fraud.
Insurance Code section 1877.5, like section 1031.1, gives
insurers a qualified privilege in the first sentence but adds a
savings clause in the second sentence. The savings clause
states: “Nothing in this chapter is intended to, nor does in
any way or manner, abrogate or lessen the existing common law or
statutory privileges and immunities of an insurer, agent
authorized by that insurer to act on its behalf, or any
authorized governmental agency or its employees.” (Ins. Code,
§ 1877.5.) The court in Fremont concluded: “Plainly, if an
insurer enjoyed a privilege to report workers’ compensation
insurance fraud (even in bad faith) prior to the enactment of
Insurance Code section 1877.5, the language of the second
sentence of section 1877.5 means that the insurer still had that
privilege afterwards.” (Fremont, supra, 44 Cal.App.4th at
p. 873.)
The Bardin court reached the same conclusion: “The savings
clause in the second sentence of section 1031.1, subdivision (b)
preserves the existing common law and statutory privileges.
These are subject to change, through judicial decision or
legislative action. In the event an absolute privilege becomes
unavailable in the future, either by a change in the common law
or by amendment to Civil Code section 47, subdivision (b), the
qualified privilege of section 1031.1 would still apply. Since
we interpret section 1031.1, subdivision (b) to preserve common
law and statutory privileges, respondents had an absolute

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privilege under O’Shea.” (Bardin, supra, 70 Cal.App.4th at
p. 504.)
Moradi characterizes the Bardin analysis as nonsensical.
She points to multiple references in the legislative history of
Senate Bill 1097 to the language “in the absence of fraud or
malice” and insists the Legislature plainly intended to provide
employers with a qualified privilege. She suggests “[t]he
second sentence of the resulting § 1031.1(b) can then be easily
reconciled with the first by assuming that the Legislature
intended that the existing body of common and statutory law
addressing qualified privileges, if any, was to remain valid and
controlling as to investigations by law enforcement agencies.”
The statute is indeed problematic, but we are not at
liberty to insert language in the statute in order to clarify
it. The second sentence of subdivision (b) of section 1031.1
expressly states that subdivision (b) is not intended to
abrogate or lessen the “existing common law or statutory
privileges and immunities of an employer.” It simply does not
refer to existing “qualified” immunities. Moreover, as we
discussed at some length above, absolute immunity is consistent
with the purpose of the statute to obtain more information about
prospective peace officers.
Moradi next contends that the statements by her former
employer were not statements made in an “official proceeding”
within the meaning of Civil Code section 47, subdivision (b).
Subdivision (b) provides that a privileged publication or
broadcast is one made “[i]n any (1) legislative proceeding,

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(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 . . . .” The courts in both O’Shea
and Bardin held that communications from citizens to
governmental agencies in the course of the latter’s official
investigation of an applicant’s qualifications are protected
by the absolute privilege of Civil Code section 47,
subdivision (b). Both cases involved facts nearly identical to
those before us. Former employers supplied information to law
enforcement agencies about employees who had applied to become
peace officers. Thus, pursuant to O’Shea and Bardin, Civil Code
section 47 applies.
Moradi asks us to reject both O’Shea and Bardin and to
adopt the reasoning of Fenelon v. Superior Court (1990)
223 Cal.App.3d 1476 (Fenelon). Fenelon, however, did not
involve an employer’s disclosure of background information about
a former employee. The case, in fact, did not involve
section 1031.1. We agree with Pimentel that the case is
factually and legally dissimilar as it involved a false police
report concocted for the express purpose of injuring the
plaintiff. Whereas law enforcement agencies sought information
from the employers in O’Shea and Bardin, the defendants in
Fenelon went to the police with a fictional account of a crime.
Moreover, we find the more recent Braun v. Bureau of State
Audits (1998) 67 Cal.App.4th 1382 (Braun) more apposite than

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Fenelon. In Braun, the Bureau of State Audits investigated a
training center at the University of California, San Francisco,
where the plaintiff worked. In her complaint for civil damages,
the plaintiff alleged the Bureau had defamed her in the audit
report issued at the conclusion of the investigation. The trial
court granted the Bureau’s demurrer without leave to amend and
the Court of Appeal affirmed. (Id. at pp. 1386-1388.)
The court rejected the same argument Moradi raises here
that the term “‘official proceeding’” in Civil Code section 47,
subdivision (b) does not “‘reach beyond proceedings which
resemble judicial and legislative proceedings.’” (Braun, supra,
67 Cal.App.4th at p. 1389.) “Our holding that statements made
in furtherance of Reporting Act audits are absolutely privileged
under Civil Code section 47 is consistent with many other cases
which have reached the same conclusion with respect to
statements made in or about other types of governmental
investigations. . . . [¶] . . . [¶] One policy underlying the
absolute privilege for statements made in governmental
investigations and reports of misconduct ‘is to assure utmost
freedom of communication between citizens and public authorities
whose responsibility is to investigate and remedy wrongdoing.’”
(67 Cal.App.4th at pp. 1389-1390.)
Citing a case we decided in 1966, McMann v. Wadler (1961)
189 Cal.App.2d 124 (McMann), Moradi contends that an official
proceeding within the meaning of Civil Code section 47 applies
only to judicial, legislative, or quasi-judicial proceedings.
We rejected the argument raised in McMann that a board of

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directors meeting of a private, nonprofit corporation is an
“official proceeding,” thereby providing directors absolute
immunity for the statements made during board meetings.
(McMann, supra, 189 Cal.App.2d at pp. 128-129.) Here, unlike
McMann, a governmental agency fulfilling its statutory
obligation to conduct a background investigation on an applicant
(Gov. Code, § 1031, subd. (d)) solicited information from a
former employer. The conclusion we rejected in McMann as to a
private meeting simply has no application to the governmental
action compelled by law here. O’Shea, not McMann, is the
relevant authority.
Section 1031.1, subdivision (b) is ambiguous. While the
first sentence provides employers a qualified privilege, the
second preserves the absolute immunity provided by Civil Code
section 47 and O’Shea. Because the purpose of the law is to
encourage employers to disclose background information about
peace officer applicants, we agree with Bardin that the context
of the statute suggests that the privilege remains absolute in
accordance with other existing privileges and immunities.
Unable to redraft the language of the statute, we must await
clarification by the Legislature. Until then, while the express
terms of section 1031.1, subdivision (b) remain ambiguous, we
must surmise what the Legislature intended from the broader
context in which the subdivision was written.

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DISPOSITION
The judgment is affirmed.
RAYE , Acting P.J.
We concur:
CALLAHAN , J.
KOLKEY , J.

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