I respectfully dissent. I would affirm the judgment of the Court of Appeal which, in my view, correctly held that the allegedly perjurious statements of defendant were not privileged communications.
The majority hold that the “litigation privilege,” one which immunizes libel, perjury, and other tortious conduct by participants and witnesses in judicial proceedings against civil liability, applies to witnesses and other participants in contractual arbitration proceedings. I cannot join this judicial expansion of a statute which, but for this court’s legislative efforts, one might have believed to be clear on its face.
Two things should be made clear. First, the communications privilege created by the Legislature was for communications made in a judicial proceeding. (Civ. Code, § 47, subd. (b)(2).)1 Second, the Legislature has considered the private arbitration setting and has created an immunity of limited duration exclusively for arbitrators. (Code Civ. Proc., § 1280.1.) When construing a statute the role of the court “is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; . . . .” (Code Civ. Proc., § 1858.) The court’s purpose is to effectuate the intent of the Legislature. (Code Civ. Proc., § 1859.) Nothing in the majority reasoning supports *659a conclusion that “judicial proceeding” includes private arbitration or that it was the intent of the Legislature that subdivision (b)(2) of section 47 apply to private contractual arbitration.
Today, when a statute, not the common law, governs immunity from suit in this state, a decision to extend immunity to witnesses is a prerogative. Unless it is compelled by constitutional mandate or the issue before it falls within the inherent power of the court over judicial administration and procedure, the court has no power to create immunities in an area in which the Legislature has spoken. For example, this court has no authority to recognize nonstatutory evidentiary privileges, the class of privileges which may be asserted to maintain confidentiality of communications. (Mitchell v. Superior Court (1984) 37 Cal.3d 268, 274, fn. 3 [208 Cal.Rptr. 152, 690 P.2d 625].) In the past the court has recognized some nonstatutory common law immunities. (See, e.g., Emery v. Emery (1955) 45 Cal.2d 421 [289 P.2d 218].) Nonetheless, immunity is an exception to the principle that liability is the rule. (§§ 1708, 3333, 3523; Gibson v. Gibson (1971) 3 Cal.3d 914, 922 [92 Cal.Rptr. 288, 479 P.2d 648].) Because liability is the rule, modern courts are reluctant to create or continue to recognize exceptions that deny an injured party the right to compensation. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433 [58 Cal.Rptr. 13, 426 P.2d 173].) A court may do so only if immunity is essential to achieve the goals of an important public policy and is not inconsistent with a legislative determination that immunity is inappropriate or should be limited.
In areas in which the Legislature has created a limited statutory immunity, the court must presume that the Legislature has weighed the competing considerations in defining the scope of that immunity. When, as here, the Legislature has acted, it is inappropriate for the court to recognize preexisting nonstatutory immunities or to expand the statutory immunity unless it is clear that the Legislature did not intend the statutory immunity to be exclusive. (Slaughter v. Friedman (1982) 32 Cal.3d 149, 158 [185 Cal.Rptr. 244, 649 P.2d 886]; Johnson v. State of California (1968) 69 Cal.2d 782 [73 Cal.Rptr. 240,447 P.2d 352].) The legislative decision to create an immunity such as the communications privilege in issue here involves a balancing of substantial, competing considerations. The majority usurp that legislative function by undertaking that balancing themselves and by extending immunity to witnesses in contractual arbitration proceedings. The court is ill-equipped to do so.
In their eagerness to shift dispute resolution from the courts to arbitration the majority ignore the differences between contractual arbitration and judicial proceedings and engage in assumptions unsupported by the record or *660by fact as to the practical impact of contractual arbitration on participants. Among those unsupported and insupportable assumptions is the assumption that contractual arbitration is relatively low cost and efficient when compared to a judicial proceeding. That assumption overlooks the thousands of individuals who, but for arbitration provisions inserted into employment agreements, consumer contracts, bank customer agreements, leases, and other contracts, would resolve their disputes at much less cost and more quickly in small claims court, and, in many cases in municipal or superior court. For this and other well-founded reasons, the paternalistic assumption of the majority that arbitration is a preferable means of dispute resolution is not universally shared. (See Reuben, The Dark Side of ADR (Feb. 1994) 14 Cal.Law. 53; Brand, Steps You Can Take to Avoid That ‘Dark Side of ADR’ (Mar. 4, 1994) S.F. Daily J., at p. 5, col. 1; Guill & Slavin, Rush to Unfairness: The Downside of ADR (Summer 1989) 3 Judges’ J. 8; Yamamoto, Efficiency’s Threat to the Value of Accessible Courts for Minorities (1990) 25 Harv. C.R.-C.L. Rev. 341, 360-361; Rowe, American Law Institute Study on Paths to a “Better Way’’: Litigation, Alternatives, and Accommodation: Background Paper (1989) Duke L.J. 824, 901; Edwards, Alternative Dispute Resolution: Panacea or Anathema? (1986) 99 Harv.L.Rev. 668; Brunet, Questioning the Quality of Alternative Dispute Resolution (1987) 62 Tul. L.Rev. 1; Delgado et al., Fairness and Formality: Minimizing the Risk of Prejudice in Alternative Dispute Resolution, 1985 Wis. L.Rev. 1359.) Neither the law nor the assumptions of the majority support the holding.
I
The Litigation Privilege
The statute, not what the majority think the law should be, is controlling. In that part of section 47 on which the majority bases its holding that the defendant is immune from any suit arising out of the deposition testimony he gave in this contractual arbitration proceeding, the Legislature provided: “A privileged publication or broadcast is one made: [f] . . . ffl] (b) In any . . . (2) judicial proceeding . . . .” (Italics added.)
The majority candidly acknowledge that it was the court, not the Legislature, which expanded that grant of immunity to cover any communication made in the course of, or in anticipation of, litigation even though it is not made in a “judicial proceeding” and does not involve either the court or its officers. (Maj. opn., ante, pp. 640-641; Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal.Rptr. 638, 786 P.2d 365].) That legislative effort having been accomplished, the majority now take the position that the extension of the litigation privilege to contractual arbitration as a proceeding to which the litigation privilege applies is also settled by prior case law. I disagree.
*661The majority’s assertion that the court has already held that arbitration proceedings are within the privilege created by subdivision (b)(2) of section 47 is supported only by a single sentence in Ribas v. Clark (1985) 38 Cal.3d 355, 364 [212 Cal.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417], that the plaintiff in that case “concedes, as he must, that an arbitration hearing falls within the scope of this privilege because of its analogy to a judicial proceeding.” Assuming, as the majority’s lengthy exposition concludes, that concession was a “holding” of the court, it is not sound precedent and should be reconsidered for reasons I address below.
I do not believe that statement has precedential value however. “When ... a decision treats an issue in a ‘summary and conclusory’ manner, and is ‘virtually devoid of reasoning,’ its authoritative status is undermined. (City of Berkeley v. Superior Court (1980) 26 Cal.3d 515, 533 [162 Cal.Rptr. 327, 606 P.2d 36].)” (McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 358 [261 Cal.Rptr. 318, 777 P.2d 91].) This is particularly true when the issue is one of first impression. (See I.J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 336 [220 Cal.Rptr. 103, 708 P.2d 682].) The law of this state is not determined on the basis of a party’s concession and the court’s assumption that the concession of law is valid. Only when the issue is squarely raised by the parties and considered by the court in a decision reflecting analysis of the legal issue and reasoning supporting the conclusion is the ruling an authoritative holding. The Constitution of California demands no less. ( Cal. Const., art. VI, § 14.)2
*662Implicitly conceding that Ribas v. Clark, supra, 38 Cal.3d 355, is not sufficiently authoritative,3 the majority do not rely solely on the “holding” of that case. As further support for the result, the majority adopts the reasoning by which the expansion of section 47, subdivision (2) to immunize communications not made “in a judicial proceeding” was justified to support a conclusion that contractual arbitration should be equated to a “judicial proceeding” and thus brought within the umbrella of immunity provided by the statute. That reasoning is not persuasive in this context.
I do not dispute the majority’s statement of the purpose underlying the immunity granted by subdivision (b)(2) of section 47. That purpose is to ensure that litigants and witnesses have free access to the court, and to encourage frank and full testimony, all of which might be compromised if the parties and witnesses were threatened by the possibility of a lawsuit based on communications necessary to prosecution of an action. Arbitration is increasingly being used to deny access to the court, however. Extending the litigation privilege to private contractual arbitration encourages institutional parties to abandon the judicial system. It does nothing to ensure access to the court for consumers and other individuals on whom arbitration agreements are imposed, but who would otherwise choose judicial proceedings over arbitration.
The majority fails to acknowledge, moreover, that while the deterrent effect of a possible action for libel and/or perjury may not be essential to the fundamental truth-finding function to which legal actions are directed, the same cannot be assumed in private contractual arbitration. The Legislature may well have concluded that trial and appellate procedures inherent in a legal action are adequate to ensure both that the truth is ascertained, thus protecting the litigants and others who might be injured by libelous or perjurious statements of parties and witnesses, and that the credible evidence is sufficient and the law correctly applied to the facts on which the action is *663predicated. Those protective procedures are guaranteed only in a judicial proceeding, however, and the Legislature has not determined that the truth-seeking mechanisms of private contractual arbitration are sufficient to warrant withdrawal of the parties’ right to seek damages in a civil tort action when those mechanisms fail because participants and witnesses engage in perjury.
Since the majority do not address the factors that inform the legislative decision to create immunity, I do so.
1. Foremost among the features which deter perjury in a judicial proceeding is the fact that a judicial proceeding is a public proceeding. The trial is open to the press and public and a record of the proceeding is available to the press and the public. Since litigants and witnesses are aware that their statements are subject not only to cross-examination and impeachment, but also to public scrutiny, the possibility that perjury will be exposed acts as a deterrent to perjury.
2. The judge and jury are neutral decision makers. Neither is dependent upon the parties to litigation for income. This neutrality ensures, to the greatest extent possible, that perjury will be recognized and a just decision rendered.
3. Witnesses are sworn to tell the truth.
4. Discovery is available to the parties. The ability to discover the evidence upon which the opponent’s case rests enables the parties to prepare effective cross-examination and to obtain and present impeaching evidence.
5. The trier of fact is required to follow the law, and review for errors of law or insufficiency of credible evidence is available by appeal.
The Legislature has determined that those protections are sufficient to warrant denying a litigant the right to a civil action against a perjurious witness. It has not done so with regard to arbitration for good reason. That reason is ¡that comparable protections are not guaranteed in private contractual arbitration. By contrast:
1. Arbitration proceedings are private. None of the formality of a judicial proceeding surrounds an arbitration hearing. Rules governing judicial procedure are not applicable. (Code Civ. Proc., § 1282.2, subd. (d).)
2. The arbitrator, or arbitrators, are dependent upon the parties for their income. They are not required by law to take an oath of fairness and *664impartiality. Institutional litigants whose contracts relegate all disputes to arbitration are the major source of income for many arbitrators. Many serve repeatedly as arbitrators for institutional clients. (See, e.g., Kaiser Foundation Hospitals, Inc. v. Superior Court (Cobum) (1993) 19 Cal.App.4th 513 [23 Cal.Rptr.2d 431]; Neaman v. Kaiser Foundation Hospital (1992) 9 Cal.App.4th 1170 [11 Cal.Rptr.2d 879]; see also, Note, The Impression of Possible Bias: What a Neutral Arbitrator Must Disclose in California (1993) 45 Hastings L.J. 113.) Neutral decisionmaking is not, and cannot be, guaranteed under these circumstances. The likelihood that the testimony of a witness who regularly appears on behalf of an institutional client will be perceived as perjurious is necessarily diminished.
3. Witnesses need be sworn only on request of a party and the rules of evidence do not apply. (Code Civ. Proc., § 1282.2, subd. (d).)
4. Discovery is not guaranteed. Depositions are available only as evidence, not for discovery purposes, except in matters involving personal injury or death, and then only if the arbitrator grants a party’s application. (Code Civ. Proc., §§ 1283, 1283.05.) Only in actions involving personal injury or death, or claims of damage in excess of $50,000, may a party demand that the other party provide a list of witnesses prior to the hearing. (Code Civ. Proc., § 1282.2, subd. (a)(2).) Failure to list a witness is not a bar to admission of that witness’s testimony. (Code Civ. Proc., § 1282.2, subd. (a)(2)(E).)
The likelihood that a party will be able to mount an effective cross-examination when the nature of a witness’s proposed testimony is not known prior to the hearing is significantly reduced, as is the ability of the party to marshal other evidence to counter that testimony at the hearing.
5. No record need be kept. The content of a witness’s testimony is not preserved' and thus not open to posthearing scrutiny by third parties. A witness may therefore give conflicting testimony in separate arbitration proceedings without fear of exposure.
6. No appellate or any judicial review is available for insufficiency of credible evidence. The ruling of the arbitrator is final insofar as the factfinding process is involved. (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 9-11 [10 Cal.Rptr.2d 183, 832 P.2d 899].)
The assertion of the majority that private contractual arbitration is comparable to a judicial proceeding is, in the end, based only on its purpose of adjudicatory dispute resolution. What is omitted in this reasoning is any *665mention of the fact that the procedure for a private contractual arbitration hearing is not established by statute, but by the contract between the parties. The provisions of Code of Civil Procedure sections 1282 and 1282.2,which offer a skeleton procedural format for the conduct of arbitration proceedings, are default procedures. Each section is expressly applicable “[u]nless the arbitration agreement otherwise provides, or unless the parties to the arbitration otherwise provide . . . .” (Ibid.)
There is, therefore, no single or even standard format for private contractual arbitration. None of the safeguards and procedures available to a party in a judicial proceeding to expose false testimony are guaranteed in private contractual arbitration. Although cross-examination may be assumed to be permitted in all such proceedings, it is not cross-examination by an attorney or party who is informed by discovery of impeaching evidence.
The majority nonetheless withdraw from persons forced into arbitration the only meaningful deterrent to perjury, an action against the perjurious witness whose misconduct may have denied them recovery or may have resulted in the unjust imposition of liability upon the party. Only the Legislature has the power to deny an individual the right to a civil action for such injury.4 It has not done so and this court should not. Indeed, until today, the court acknowledged that expansion of the immunities established by section 47 was, and should be, a legislative prerogative, and that statute, not common law, is the source of immunities in this state.
The court has repeatedly recognized this limitation on its authority. Addressing the limited statutory privilege for libel, we rejected any judicial expansion, stating: “[T]he Legislature has not as yet adopted the section 592A [of the Restatement Second of Torts] privilege .... We have held that all questions regarding the applicable privileges in libel actions were resolved by the adoption of section 47. (Albertson v. Raboff(1956) 46 Cal.2d 375, 378-379 [295 P.2d 405].) Accordingly, it would seem improper for us judicially to create an additional privilege, especially one which is considerably broader than the existing statutory privileges. Moreover, the grant of privileges in defense of a defamation action involves matters of public policy. (See Kachig v. Boothe (1971) 22 Cal.App.3d 626, 641 [99 Cal.Rptr. 393].) Deferring to legislative judgment, we decline to impose either our own or the Restatement’s views of policy, especially in an area in which the Legislature has spoken so extensively.” (Slaughter v. Friedman, supra, 32 Cal.3d 149, 158.) The majority offer no justification for a departure from *666this deference to legislative judgment in the context of the litigation privilege.
More recently, the court again declined to expand a statutory privilege in Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711 [257 Cal.Rptr. 708, 771 P.2d 406]. There, what is now subdivision (c) of section 47 was in issue. That section creates a qualified privilege for communications “without malice, to a person interested therein, (1) by one who is also interested . . . .” (§ 47, subd. (c)(1).) Defendant sought a construction or expansion of the immunity to encompass media publication to the general public about a private person. Concluding that the statute could not be construed that broadly, and rejecting an argument that public policy supported such an expansion we recognized that “[s]uch changes require analysis of empirical data and are better dealt with in the legislative arena. [Citation.] Section 47 [, subdivision (c)] is a creation of the Legislature, which can act accordingly if it believes the statute should be expanded.” (48 Cal.3d 711, 740.)
Neither the necessity for expansion of the section 47 communication privileges nor the possible need to extend those privileges to arbitration has been overlooked by the Legislature. It has created numerous additional communication privileges since section 47 was enacted in 1872. (See, e.g., §§ 43.8 [immunity for communication on evaluation of practitioner of healing arts], 47, subd. (b)(4) [communications in proceedings authorized by law and reviewable by mandate], 48.5 [immunity for owner, licensee, or operator of broadcasting station for defamation broadcast over radio by agent or employee], 48.7 [immunity against libel or slander action while child abuse charges pending for report of abuse]; Bus. & Prof. Code, § 2318 [communication of information to licensing board of information regarding possible drug dependence, alcohol abuse, or mental illness of licensee].)
The addition of subdivision (b)(4) to section 47 demonstrates that the Legislature is responsive when it believes that statutory communication immunities should be expanded for reasons of public policy. As the majority recognize, that provision was added in response to this court’s holding in Hackethal v. Weissbein (1979) 24 Cal.3d 55 [154 Cal.Rptr. 423, 592 P.2d 1175, 9 A.L.R.4th 791], that a peer review proceeding of a medical society was not an “official proceeding authorized by law” and thus the communications privilege of what is now subdivision (b)(3) of section 47 was inapplicable. That legislative response was appropriately narrow, however. It did not, as defendant argues, extend immunity to any private hearing that might be described as “quasi-judicial.” (See Cuenca v. Safeway San Francisco Employees Fed. Credit Union (1986) 180 Cal.App.3d 985 [225 Cal.Rptr. 852].)
*667Again, following a Court of Appeal decision holding that an arbitrator serving in a private contractual arbitration proceeding did not enjoy complete judicial immunity (Baar v. Tigerman (1983) 140 Cal.App.3d 979 [211 Cal.Rptr. 426, 41 A.L.R.4th 1004]), the Legislature responded by enacting Code of Civil Procedure section 1280.1 in 1985. That section created the “immunity of a judicial officer from civil liability” for arbitrators acting as such pursuant to statute or contract. In 1990, the section was amended to also provide that the immunity would “supplement,” and not supplant “any otherwise applicable common law or statutory immunity,” reflecting the Legislature’s acceptance of the existence of common law immunity of judges. (See Pickett v. Wallace (1881) 57 Cal. 555, 557; Turpen v. Booth (1880) 56 Cal. 65; Downer v. Lent (1855) 6 Cal. 94; Oppenheimer v. Ashburn (1959) 173 Cal.App.2d 624, 631 [343 P.2d 931]; Perry v. Meikle (1951) 102 Cal.App.2d 602, 605 [228 P.2d 17]; Wyatt v. Arnot (1907) 7 Cal.App. 221, 227 [94 P. 86].)
The Legislature did not create immunity for, or thereby recognize, common law immunity of, witnesses in private contractual arbitration proceedings, however. The legislative response was a “legislative policy determination that in view of overwhelming court congestion, complete immunity was essential to encourage persons to serve as arbitrators.” (Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 535 [260 Cal.Rptr. 713], italics added.) Even the decision that arbitrators should enjoy immunity was tentative. As enacted the immunity provision expired by its own terms on January 1, 1991, unless extended. (Stats. 1985, ch. 709, § 1, p. 2341.) It has since been extended, but again for only a limited period and will expire on January 1, 1996, unless a further extension is enacted. This is hardly a resounding legislative endorsement of immunity for arbitrators, and says nothing about immunity for witnesses and participants in private contractual arbitration. The limited nature of the grant of immunity by a Legislature that was clearly aware of the importance of arbitration is indicative of legislative intent to restrict immunity in the arbitral arena. The majority encroach on the policymaking sphere of the legislative branch by expanding the statutory grant of immunity to encompass participants and witnesses in private contractual arbitration.
It is no answer to say that the parties have agreed to arbitrate, and to accept the loss of the right to a civil tort action for perjury, when standard form consumer contracts include an arbitration provision that is often neither read nor understood by the consumer. (See, e.g., Patterson v. ITT Consumer Financial Corp. (1993) 14 Cal.App.4th 1659 [18 Cal.Rptr.2d 563].) Nor is it sufficient to say that the consumer may avoid the impact of the arbitration *668provision by establishing that the contract is one of adhesion.5 To a consumer who would otherwise litigate a claim in small claims court, the prospect of avoiding the arbitration clause of a contract by retaining an attorney and initiating a civil action is not a realistic alternative. Only when the contract has been negotiated by sophisticated parties of equal bargaining power can it be said that a voluntary and knowing waiver of the right to subsequent suit against a perjurious witness has been made in exchange for the “benefits” of arbitration.6
Although not relevant to the question of whether section 47, subdivision (b)(2), encompasses private contractual arbitration, response must be made to the majority’s assumption that arbitration is less costly than a judicial proceeding. It most certainly is not to the consumer who, but for the arbitration clause in a contract, would resolve a claim in small claims court, or represent himself or herself in the municipal or superior court. Arbitrator’s fees for one leading arbitration service in this state are typically in the $350 to $500 per hour range! (Reuben, King of the Hill (Feb. 1994) 14 Cal.Law. 55.) In addition, there may be filing or service fees with the arbitration service, fees for discovery, and fees for written findings and expedited hearings. (See, e.g., Patterson v. ITT Consumer Financial Corp., supra, 14 Cal.App.4th 1659, 1665, fn. 3.) That expense and the expenses of the arbitrator or arbitrators, if more than one is called for in the contract, must be shared by the parties. The arbitrator’s fees are not limited to the time of hearing itself, but include prehearing conferences which the arbitrator or a party may require, mediation or settlement conferences which may be ordered, and the time devoted to preparation of the award. (See generally, Judicial Arbitration & Mediation Services, Inc., J.A.M.S. Rules of Practice & Procedure (1992); American Arbitration Association, Commercial Arbitration Rules (1992).)
*669II
The Official Proceeding Privilege
I would also reject the argument of defendant and the several amici curiae representing groups and organizations which utilize contractual arbitration as a preferred means of dispute resolution that communications made in the course of private contractual arbitration fall within the privilege established by subdivision (b)(3) of section 47 for official proceedings. Private contractual arbitration is not an official proceeding within the contemplation of that subdivision.
In subdivision (b)(3) of section 47, the Legislature has created immunity for communications “in any other official proceeding authorized by law.” Section 47 was enacted as part of the Civil Code in 1872. At that time, the “official proceeding” privilege (then designated section 47, subdivision 2(3)) was described simply as one applicable to a communication made while “testifying as a witness in any proceeding authorized by law to a matter pertinent and material, or in reply to a question allowed by the tribunal.” The provision was amended in 1874 to describe the proceedings in which communications were privileged with greater specificity. Pursuant to the 1874 amendment a privileged communication was one made only in “any legislative or judicial proceeding, or in any other official proceeding authorized by law.” (§ 47, subd. Two; Code Amends. 1873-1874, ch. 612, § 11, p. 184.) Although other parts of section 47 have been amended in the interim, the language of subdivision 47(b)(3) has not been changed since 1874.
At the time of its enactment in 1872, section 47 included, in what was then the fourth subdivision, a privilege (see now § 47, subd. (d)) which complements the official proceedings privilege, a privilege for news reports of statements made in the proceedings covered by the second subdivision. That fourth subdivision extended the privilege to a publication made in “a fair and true report in a newspaper, without malice, of a judicial, legislative, or other public official proceeding, or of anything said in the course thereof.”
At the same time the Legislature included a similar privilege in the Penal Code of 1872. As enacted in that year, former section 254 of that Penal Code provided:
“No reporter, editor, or proprietor of any newspaper is liable to any prosecution for a fair and true report of any judicial, legislative, or other public official proceedings, or of any statement, speech, argument, or debate *670in the course of the same, except upon proof of malice in making such report, which shall not be implied from the mere fact of publication.”
The notes of the Code Commissioners who drafted the Civil Code offer no insight into their understanding of the term “official proceedings.” The explanatory authority cited referred only to the privilege for communications to interested persons which was then found in former subdivision 3 of section 47, and to a judicial proceeding.7 The Code Commissioners’ Note accompanying former section 254 of the 1872 Penal Code makes reference to the decision in Sanford v. Bennett (1861) 24 N.Y. 20, in which the court held that a New York statute creating such a privilege applied only to “judicial and legislative proceedings, and to transactions resembling them, and not to'an executive act to be performed by a single person and admitting of no deliberation . . . (Ann. Pen. Code of 1872, foll. § 254.)8
Like section 47, subdivision (b)(3), which is among the Civil Code provisions addressed to civil actions for defamation, former section 254 of the Penal Code was among the provisions which then permitted criminal prosecution for libel. The inclusion in both the Civil Code and the Penal Code of a privilege for news reports of statements made during “public” official proceedings strongly suggests that although that “public” limitation was not express in subdivision 2 of the original section 47, the legislative intent was to create a privilege applicable only to statements made in public, i.e., governmental, official proceedings.
I recognize the rule of statutory construction “ ‘that when the Legislature has carefully employed a term in one place and has excluded it in another, it should not be implied where excluded.’ ” (Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d 711, 725.) In this context, however, that rule would seem to be irrelevant since there is no reason to believe that in 1872 the Legislature had nongovernmental “official proceedings” in mind. That it did not is suggested by the Legislature’s subsequent use of the descriptive phrase *671“legislative or judicial proceeding, or in any other official proceeding authorized by law” in the 1874 amendment (Code Amends. 1873-1874, ch. 612, § 11, p. 184.) The rule of ejusdem generis aids in the construction of a statute if there is ambiguity. Under that canon “ ‘where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated. The rule is based on the obvious reason that if the Legislature had intended the general words to be used in their unrestricted sense, it would not have mentioned the particular things or classes of things which would in that event become mere surplusage.’ ” (Sears, Roebuck & Co. v. San Diego County Dist. Council of Carpenters (1979) 25 Cal.3d 317, 331, fn. 10 [158 Cal.Rptr. 370, 599 P.2d 676].) The relevance of the rule is particularly apparent here where the Legislature felt it necessary to amend the statute to clarify the nature of the proceedings to which the privilege applied, the original version having described them only as “any proceeding authorized by law.”
The court reached the same conclusion after reviewing the history of section 47 in Hackethal v. Weissbein, supra, 24 Cal.3d 55. There the court held that an “official proceeding authorized by law” did not include nongovernmental proceedings. The purpose of the 1874 amendment, the court reasoned, was to make it clear that the “proceeding authorized by law” to which the 1872 statute extended an absolute communication privilege were only official governmental proceedings. It was for that reason that the Legislature found it necessary to enact section 43.8 in 1974 to create a qualified privilege for communications to various committees and licensing organizations that were intended to assist in evaluating the qualifications of medical practitioners. The Legislature specified in that statute that the new privilege was “[i]n addition to the privilege afforded by Section 47.” (§ 43.8.) The court noted in that regard: “The enactment of section 43.8 makes sense because section 47, subdivision 2 [now section 47, subdivison (b)], applies exclusively to government agencies.” (24 Cal.3d at p. 61.)
The Legislature apparently accepted that understanding of section 47, as it then amended subdivision 2, now subdivision (b), of that section to extend the absolute privilege to any proceedings reviewable by writ of mandate. (Stats. 1979, ch. 184, p. 403; see Wallin v. Vienna Sausage Manufacturing Co. (1984) 156 Cal.App.3d 1051, 1055 [203 Cal.Rptr. 375], text accompanying fn. 4.) “It is a well-established principle of statutory construction that when the Legislature amends a statute without altering portions of the provision that have previously been judicially construed, the Legislature is presumed to have been aware of and to have acquiesced in the previous judicial construction.” (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 734 [180 Cal.Rptr. 496, 640 P.2d 115, 30 A.L.R.4th 1161].)
*672After the 1979 amendment of section 47, when the court considered the scope of the privileges it established in Slaughter v. Friedman, supra, 32 Cal.3d 149, the court again concluded that the only nongovernmental official proceedings for which section 47 created a privilege were adjudicatory proceedings reviewable by writ of mandate. “[T]he Legislature added clause 4 to subdivision 2 [now subdivision (b)] of section 47, applying the privilege to proceedings authorized by law and reviewable by mandate. It is clear, however, that the private processing of dental claims does not fall within this newly extended category." (32 Cal.3d at p. 156.)
Defendant acknowledges that Hackethal v. Weissbein, supra, 24 Cal.3d 55, may be read as excluding private arbitration contractual proceedings from the scope of the section 47, subdivision (b)(2) privilege, and urges the court to limit or overrule that decision. He argues that Hackethal addressed only the privileged status of the medical society proceedings at issue in that case, and the failure of the majority to discuss arbitration and other “quasi-judicial” private proceedings implies that the court did not intend to eliminate the privilege in arbitration proceedings. Those proceedings, he suggests, were “pseudo-judicial,” and the court’s holding that they were not subject to the privilege should not be extended to “quasi-judicial” proceedings such as private arbitration.
The flaw in that argument lies in its failure to recognize that the basis for the court’s holding in Hackethal v. Weissbein, supra, 24 Cal.3d 55, 60-61, was that the Legislature did not intend section 47, subdivision (b)(2) to apply to nongovernmental proceedings. Whether or not the proceeding resembled a judicial proceeding was not dispositive. The court was, quite obviously, aware of the potential impact of its holding on other “quasi-judicial” private proceedings, including arbitration. The dissent made that potential impact clear.
I agree with the conclusion of the Court of Appeal that Hackethal is dispositive of defendant’s claim that the official proceeding privilege immunizes his statements and conduct.
I would affirm the judgment of the Court of Appeal.
Mosk, J., and Kennard, J., concurred.
Appellants’ petition for a rehearing was denied June 30, 1994. Werdegar, J., did not participate therein. Mosk, J., Kennard, J., and Baxter, J., were of the opinion that the petition should be granted.
All statutory references are to the Civil Code unless otherwise indicated.
Article VI, section 14, mandates: “Decisions of the Supreme Court and courts of appeal that determine causes shall be in writing with reasons stated.”
That requirement was not part of the 1850 Constitution. It was added as part of section 2 of article VI in the Constitution of 1879 for the express purpose of ensuring careful consideration of legal issues and providing the guidance which the court’s analysis and reasoning would afford the bench and bar of this state. At the time the written opinion requirement was added, the Constitution provided: “In the determination of causes, all decisions of the Court in bank or in departments shall be given in writing, and the grounds of the decision shall be stated.” (Cal. Const of 1879, art. VI, § 2.)
When the requirement was proposed by the Committee on the Judiciary during the 1878-1879 Constitutional Convention, Delegate Wilson explained its purpose to the delegates sitting as a Committee of the Whole. “The importance of requiring the Court to give written opinions cannot be overrated. They . . . become the settled law of the State, and are precedents for subsequent cases, ...[!]... [T]hroughout the United States the Courts are required to deliver written opinions, stating the grounds of the decision, as we have provided in this section. Undoubtedly it will insure a careful examination of the cases, and result in well considered opinions, because they must come before the jurists of the country and be subjected to the severest criticism. ... [1] ... [1] ... Of course, there will always be some cases disposed of without written opinions. Sometimes a case goes off on some formal motion, or is dismissed on a technical question of practice. But I am speaking generally, of cases argued and submitted upon their merits, and there the decision is of little account as *662settling the law, unless the Court gives its reasons for the decision in writing.” (2 Debates & Proceedings, Cal. Const. Convention 1878-1879, pp. 950-951.)
During the subsequent debate on the provisions of article VI affecting the Supreme Court, Mr. Wilson again explained: “[0]pinions must be written by a Court of last resort as matters of precedent. It is a very different thing from sitting down and saying that the judgment of the Court below is reversed or affirmed without giving any reasons, because when that is published, nobody knows whether that decision is right or wrong. But when the Judge has to sit down and write an opinion, or . . . they must give their opinion in writing, stating the grounds of the decision, then they are brought before the whole bar of the State, and they are bound to present themselves in a position where law and reason sustain the adjudication.” (3 Debates & Proceedings, Cal. Const. Convention 1878-1879 at p. 1455.)
The doubtful status of the party concession in Ribas v. Clark, supra, 38 Cal.3d 355, as a holding or as precedential authority is more than adequate explanation of the Legislature’s failure to “overrule” that “holding.”
Section 3281: “Every person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages.”
Some “imposed” arbitration agreements may not be avoided on that ground. The Legislature has provided that a contract for medical services is “not a contract of adhesion, nor unconscionable nor otherwise improper” if it complies with statutory requirements which attempt to ensure notice. (Code Civ. Proc., § 1295, subd. (e).)
In their paper for the Judicial Administration Division of the American Bar Association, James L. Guill and Edward A. Slavin, Jr., expressed similar concerns, concluding that alternative dispute resolution may be “highly inappropriate” when parties are unequal in financial resources or experience. They suggest that individual plaintiffs should not “be forced to submit their claims to someone who may be biased, or less than qualified, or unethical, or who for lack of statutory or regulatory control is less accountable and whose decisions may not be subject to judicial review.” (Guill & Slavin, Rush to Unfairness: The Downside of ADR, supra, 3 Judges’ J. at p. 10.)
The authors express particular concern that the absence of judicial review removes “a major bulwark against arbitrary and capricious decisions, prejudicial error, inequity, and inequality.” (Guill & Slavin, Rush to Unfairness: The Downside of ADR, supra, 3 Judges’ J. at p. 12.)
See Brown v. Kelly Broadcasting Co., supra, 48 Cal.3d 711, 728-729, footnote 15. Those citations were: “Perkins vs. Mitchell, 31 Barb., p. 461; Lewis vs. Chapman, 16 N.Y., p. 369; Thorn vs. Moser, 1 Denio, p. 488; 1 Hilliard on Torts, p. 317.” (1 Ann. Civ. Code of 1872, foll. § 47.)
The privilege for news reports of statements made in official proceedings was taken from the New York Civil Code which at that time provided in section 25: “No person is liable for publishing a fair and true report in a newspaper, of any judicial, legislative or other public official proceeding, or of anything said in the course of the same, except upon extrinsic proof of actual malice.”
The New York Commissioners of the Code cited Lewis v. Chapman (1857) 16 N.Y. 369, and the New York Laws of 1854, chapter 130, as authority for the provision which also addressed communications to an interested person, a subject which became subdivision 3 of the 1872 version of section 47.