Do Mandatory Reporters Have Immunity for False Report

We often receive phone calls from people who were accused of a crime that they did not commit.  They may want to sue the person for defamation or slander. 

We also receive calls from people who have a case dismissed and they want to sue the police department, the district attorney and the judge (even though the case may not have been dismissed due to the suspect’s innocence). 

We generally advise the caller that the First Amendment right to petition provides a qualified immunity to a defamation (slander is a form of defamation) or an abuse of process claim and we then explain the litigation privilege (Civil Code § 47) and the Anti-SLAPP (strategic lawsuit against public process) law, which even permits the recovery of attorney fees for defendant from someone who brings an unsuccessful civil abuse of process case.

The caller is often saddened by our answer when we explain that the litigation privilege protects a person from civil liability for even conduct “alleged to be fraudulent, perjurious, unethical, or even illegal.” Kashian v. Harriman (2002) 98 Cal.App.4th 892, 920.

We explain to the caller that the California Supreme Court has acknowledged the litigation privilege “necessarily results in some real injuries that go uncompensated” but acknowledged “that is the ‘price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.'” Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (quoting Prosser, Law of Torts (3d ed. 1964, p. 797); see id. at 213 (“The principal purpose of section [47(b)] is to afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (internal citations omitted). “To effectuate its vital purposes, the litigation privilege is held to be absolute in nature.” Id. at 215.

However, our law also recognizes that mischief in reporting for an ulterior purpose also exists. 

In elder abuse, for example, Welfare & Institutions Code § 15634(a) recognizes that knowingly false reports of elder abuse are made and immunity from civil liability for such reports must not be extended to those who are not mandatory reporters, but try to manipulate the law for financial gain, harassment or even just to annoy another family member. 

Section 15634(a) preserves absolute immunity for certain categories of reporters and bars immunity for knowingly false reports of elder abuse.  At subsection (a), it provides:

Application of this law was recently challenged by Lynda Valero in an elder abuse case arising in Santa Clara County.  Ms. Valero and Sabrina Dellard were care custodians working for Spread Your Wings, LLC, which provided in-home services to dependent adults.

One of the dependent adults was Michael Barton, who both Ms. Valero and Ms. Dellard were caregivers on different shifts in his home.  Ms. Valero alleged that Ms. Dellard, a mandatory reporter under the elder-abuse laws, made a knowingly false report to law enforcement that she had seen Ms. Valero try to kill Mr. Barton by smothering him with a pillow.  It was further alleged by Ms. Valero that Ms. Dellard later coerced Mr. Barton to confirm the false report.

Ms. Valero was then arrested and charged with attempted murder.  Her bail was too high for her to post bail, so she spent 28 days in custody before evidence surfaced that revealed the reports about Ms. Valero was false and the case was dismissed.

Ms. Valero then sued Ms. Dellard and Spread Your Wings, as Dellard’s employer, for malicious prosecution.  Defendants demurred, asserting statutory immunity under Welfare & Institutions Code § 15634(a).  Ms. Valero opposed the demurrer, arguing that intentionally false reports were excluded from the absolute immunity afforded to mandatory reporters from civil and criminal liability.  The trial court sustained the demurrer.

Ms. Valero then appealed to the Sixth Appellate District in Lynda Valero v. Spread Your Wings, LLC.  The Sixth Appellate District affirmed the trial court, holding that the absolute immunity was proper.

We present this summary to exemplify the difficulty of suing someone for even an intentionally false report, particularly in the elder abuse context.

For more information about elder abuse and false reports, please click on the following articles: