California’s litigation privilege (codified at Civil Code, section 47, subdivision(b)) gives a person absolute immunity (i.e., a complete defense) from liability for any “publication or broadcast” made as part of a “judicial proceeding.” It applies (and is a complete defense) to any such communication that the person has made in a judicial or quasi-judicial proceeding (as a litigant or witness), or other participants authorized by law, to achieve the objects of the litigation. (Civ. Code, §47, subd. (b).) The privilege covers communications that have some connection or logical relation to a lawsuit. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) Thus, the privilege covers communications made “to achieve the objects of the litigation, even though the publication is made outside the courtroom,” including communications having only some relation to a lawsuit. (Silberg, supra, 50 Cal.3d at p. 212.) Moreover, the privilege is absolute in nature, applying “‘to all publications, irrespective of their maliciousness.'” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment).)
The purpose of the litigation privilege is five fold:
● To afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions,
● To encourage open channels of communication and zealous advocacy,
● To promote complete and truthful testimony,
● To give finality to judgments, and
● To avoid unending litigation.
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.)
O’Neil v. Cunningham (1981) 118 Cal.App.3d 466 (O’Neil) is instructive. There, an anesthesiologist was sued for medical malpractice. The anesthesiologist’s insurance carrier hired an attorney to represent the anesthesiologist. During litigation, the attorney sent a letter to the insurer, making false statements about the anesthesiologist. The letter came into the hands of anesthesiologist’s superiors, who then terminated the anesthesiologist’s contract. The anesthesiologist sued the attorney for various torts. The court sustained the attorney’s demurrer without leave to amend. Reasoning that the litigation privilege applies to any communication “made in any judicial proceeding”, the O’Neil court held that the litigation privilege protected an attorney even if he defamed his own client. The O’Neil court concluded by asserting:
[The anesthesiologist] makes a persuasive argument that the absolute privilege of section 47, subdivision 2, should not apply to an attorney who defames his client. Perhaps it should not or perhaps there should be a qualified privilege. But these are policy questions that should be addressed to and resolved by the Legislature. The statute as written clearly embraces the situation at hand. As the Supreme Court recently put it in People v. Chadd (1981) 28 Cal.3d 739, “[it] is settled that ‘[When] statutory language is thus clear and unambiguous there is no need for construction, and courts should not indulge in it.” [Citation.]
(O’Neil, supra, 118 Cal.App.3d at p. 477.)
Also, “the privilege has been extended to any communication, whether or not it is a publication, and to all torts other than malicious prosecution.” (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29.) “Thus, the privilege has been applied to suits for fraud.” (Id. [citing Carden v. Getzoff (1987) 190 Cal.App.3d 907 and Steiner v. Eikerling (1986) 181 Cal.App.3d 639].)
At Kashfian & Kashfian, LLP, we have experience with California’s litigation privilege, and as your counselor, we will fight vigorously on your behalf. Contact our offices to learn more about the services that we provide.
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