Silberg v. AndersonSilberg v. Anderson
KAUFMAN, J.*
We granted review in this case to resolve an apparent conflict in decisions of the Courts of Appeal regarding the nature and scope of the “litigation privilege” found in
This action arises from a marital dissolution proceeding in which defendant, Margaret Anderson, was the attorney for the wife of Barry Silberg (hereafter husband), the plaintiff in this action. (1) The following facts are derived from the complaint since, under settled law, we assume the truth of all properly pleaded material allegations of the complaint (Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, 170 [164 Cal. Rptr. 839, 610 P.2d 1330, 9 A.L.R.4th 314]; Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496 [86 Cal. Rptr. 88, 468 P.2d 216]) and give the complaint a reasonable interpretation by reading it as a whole and its parts in their context (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [216 Cal. Rptr. 718, 703 P.2d 58]).
During the course of the dissolution proceedings, the husband asked his attorney to obtain an agreement from the wife that all family members would submit to psychological evaluation and counseling to be conducted by a “mutually agreeable and independent” psychologist for the purpose of determining appropriate visitation and custody arrangements. The parties’ attorneys subsequently stipulated to proceed in that fashion and, upon the recommendation of Attorney Anderson and with the approval of husband‘s attorney, a psychologist, Dr. Robert Adler, was selected to perform the psychological evaluation and counseling. Although the record does not disclose the results of the psychological evaluation, the psychologist‘s recommendations for custody and visitation arrangements or the court orders resulting from the proceeding, the overall result was apparently adverse to the husband.
Subsequently, husband instituted this action against Attorney Anderson (hereafter defendant), as well as his own attorney,2 claiming damages for breach of contract, negligence and “intentional tort” (apparently intentional infliction of emotional distress or intentional misrepresentation). Husband‘s claims are based upon allegations that, contrary to defendant‘s representation that the psychologist recommended by her was independent and neutral, Dr. Adler was a person with whom she had an unspecified preexisting relationship, the existence and nature of which she allegedly failed to disclose to husband‘s attorney. Husband claims defendant subsequently used her undisclosed relationship with Dr. Adler to influence him to the wife‘s advantage in the psychological evaluation of the Silberg family members. Husband further alleges that, due to defendant‘s influence, Dr. Adler produced a report that “was biased, wholly inaccurate and defamatory.”
Defendant demurred to the complaint, urging that husband had failed to state facts sufficient to constitute a cause of action against her because her statements during the litigation were privileged under
Husband appealed from the judgment. The Court of Appeal affirmed the judgment of dismissal as to all other causes of action but reversed as to the fifth cause of action, denominated “intentional tort,” and remanded to the trial court with directions to issue a new order sustaining the demurrer with leave to amend as to that cause of action.3 The Court of Appeal concluded defendant‘s representations were not privileged under
Defendant petitioned for review, asserting, in essence, that the privilege delineated in
II
In furtherance of the public policy purposes it is designed to serve, the privilege prescribed by
The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. (See, e.g., Green v. Uccelli (1989) 207 Cal. App.3d 1112, 1124 [255 Cal. Rptr. 315]; Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal. App.3d 1513, 1521 [254 Cal. Rptr. 478]; Walsh v. Bronson (1988) 200 Cal. App.3d 259, 269 [245 Cal. Rptr. 888]; Financial Corp. of America v. Wilburn (1987) 189 Cal. App.3d 764, 772-773 [234 Cal. Rptr. 653]; Chen v. Fleming (1983) 147 Cal. App.3d 36, 41 [194 Cal. Rptr. 913]; Hagendorf v. Brown (9th Cir.1983) 699 F.2d 478, 480.)
However, a line of cases decided in the Courts of Appeal would carve out an exception to the privilege prescribed by
III.
1. Policies Furthered by Section 47(2)
(2) The principal purpose of
In a decision that applied a similar common law litigation privilege, the United States Supreme Court echoed these policy considerations: “`the dictates of public policy ... require[] that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible’ [citation].” (Briscoe v. LaHue (1983) 460 U.S. 325, 333 [75 L.Ed.2d 96, 106, 103 S.Ct. 1108].) Thus, witnesses should be free from the fear of protracted and costly lawsuits which otherwise might cause them either to distort their testimony or refuse to testify altogether. (Ibid.; Pettitt v. Levy, supra, 28 Cal. App.3d at pp. 490-491.)
Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result. (Kachig v. Boothe (1971) 22 Cal. App.3d 626, 640-641 [99 Cal. Rptr. 393]; see also Pico v. Cohn (1891) 91 Cal. 129 [25 P. 170, 27 P. 537].) The instant case is an example in point. During the dissolution proceedings, the husband had every opportunity to challenge the validity of Dr. Adler‘s psychological evaluation and recommendations. He could have engaged another psychologist, attempted to impeach the credibility of Dr. Adler by showing bias, or attacked the evaluation and recommendations in other ways using standard litigation techniques. Having failed to do so during the dissolution proceedings, however, husband now seeks to sue his former wife‘s attorney for money damages allegedly caused by the use of the assertedly biased and inaccurate report after finality of the dissolution decree.
For our justice system to function, it is necessary that litigants assume responsibility for the complete litigation of their cause during the proceedings. To allow a litigant to attack the integrity of evidence after the proceedings have concluded, except in the most narrowly circumscribed situations, such as extrinsic fraud, would impermissibly burden, if not inundate, our justice system. (Briscoe v. LaHue, supra, 460 U.S. 325, 333 [75 L.Ed.2d 96, 106]; Pico v. Cohn, supra, 91 Cal. 129; Kachig v. Boothe, supra, 22 Cal. App.3d 626, 641.)
Given the importance to our justice system of ensuring free access to the courts, promoting complete and truthful testimony, encouraging zealous advocacy, giving finality to judgments, and avoiding unending litigation, it is not surprising that
2. The Absolute Nature of the Litigation Privilege Under Section 47(2)
To effectuate its vital purposes, the litigation privilege is held to be absolute in nature. (Ribas v. Clark, supra, 38 Cal.3d at p. 364; Albertson v. Raboff, supra, 46 Cal.2d at p. 381; Carden v. Getzoff (1987) 190 Cal. App.3d 907, 914 [235 Cal. Rptr. 698]; Financial Corp. of America v. Wilburn, supra, 189 Cal. App.3d at p. 771; McClatchy Newspapers, Inc. v. Superior Court, supra, 189 Cal. App.3d at p. 971; O‘Neil v. Cunningham (1981) 118 Cal. App.3d 466, 475 [173 Cal. Rptr. 422]; Thornton v. Rhoden, supra, 245 Cal. App.2d at p. 86.) In Albertson, Justice Traynor, speaking for the court, reasoned that the policy of encouraging free access to the courts was so important as to require application of the privilege to torts other than defamation. (Albertson v. Raboff, supra, 46 Cal.2d at p. 381; see Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1164.) Accordingly, in the years since Albertson,
That the privilege is absolute is also confirmed by the statutory language. (4) As amended in 19274 by the addition of the “divorce proviso,”
3. The “Interest of Justice” Test
The “interest of justice” test appears to have originated with Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal. App.3d 818. The Bradley court stated: “[I]n determining whether or not the defamatory publication should be accorded an absolute privilege, special emphasis must be laid on the requirement that it be made in furtherance of the litigation and to promote the interest of justice. Only if this requirement has been satisfied, is it appropriate for the courts to define liberally the scope of the term `judicial
Thus, the Bradley court read into the requirement that the communication be made “to achieve the objects of the litigation” the additional requirement that the communication must have also been made for the purpose of promoting the “interest of justice.” Actually, the Bradley court‘s announcement of the “interest of justice” test was wholly unnecessary to its decision. The court had already concluded that both the communicator and the communicatee were strangers to the action (neither parties, prospective witnesses nor attorneys in the action), and that the communication was not reasonably related to the action. Either of these conclusions was ample basis for holding that the communication was not privileged without resort to any “interest of justice” test.
Moreover, while the added moral consideration injected by the Bradley court may seem attractive, on further reflection it is seen to be a drastic departure from precedent and largely destructive of the principal purpose of the litigation privilege. It would permit derivative tort suits in many, if not most, cases on the ground that an otherwise privileged communication was not made for the purpose of promoting justice, a charge easily and quickly made by an adversary.
The “interest of justice” test, as adopted in Bradley, has been criticized and indeed rejected in a number of decisions by sister Courts of Appeal. (ITT Telecom Products Corp. v. Dooley (1989) 214 Cal. App.3d 307 [262 Cal. Rptr. 773]; Green v. Uccelli, supra, 207 Cal. App.3d 1112; Financial Corp. of America v. Wilburn, supra, 189 Cal. App.3d 764; McClatchy Newspapers, Inc. v. Superior Court, supra, 189 Cal. App.3d 961; O‘Neil v. Cunningham, supra, 118 Cal. App.3d 466.)
Nevertheless, a number of Court of Appeal decisions appear to have embraced the “interest of justice” requirement, either linguistically or substantively. (See Kinnamon v. Straitman & Snyder, supra, 66 Cal. App.3d at p. 897; Earp v. Nobmann, supra, 122 Cal. App.3d at pp. 284-285; Barbary Coast Furniture Co. v. Sjolie, supra, 167 Cal. App.3d at p. 334; McKnight v. Faber, supra, 185 Cal. App.3d at p. 650; Fuhrman v. California Satellite Systems, supra, 179 Cal. App.3d at p. 421.)
We also observe, however, that in many of the decisions purporting to utilize the “interest of justice” test, the court could have reached the same result, no privilege, on the basis of the absence of one of the traditionally recognized factors. (See, e.g. McKnight v. Faber, supra, 185 Cal. App.3d at p. 650 [the immunity of
(5a) We conclude that the well-intentioned addition of the “interest of justice” test must be rejected. A rule that an otherwise privileged communication is not privileged under
It is thus clear that the Court of Appeal in the instant case lacked persuasive authority to hold defendant‘s communications unprivileged on the theory they may not have been made for the purpose of advancing the “interest of justice.” The salutary policy reasons for an absolute privilege supersede individual litigants’ interests in recovering damages for injurious publications made during the course of judicial proceedings.
We recognize, as have applicable precedents, that the disallowance of derivative tort actions based on communications of participants in an earlier action necessarily results in some real injuries that go uncompensated. But, as stated in Kachig v. Boothe, supra, 22 Cal. App.3d at page 641, quoting Prosser, Law of Torts (3d ed. 1964) page 797, that is the “`price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.‘”
We observe, however, that in a good many cases of injurious communications, other remedies aside from a derivative suit for compensation will exist
(5b) To the extent inconsistent with this opinion, those decisions employing the “interest of justice” test are disapproved. These decisions include: Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal. App.3d at p. 826; Kinnamon v. Straitman & Snyder, supra, 66 Cal. App.3d at p. 897; Earp v. Nobmann, supra, 122 Cal. App.3d at pp. 284-285; Barbary Coast Furniture Co. v. Sjolie, supra, 167 Cal. App.3d at p. 334; McKnight v. Faber, supra, 185 Cal. App.3d at p. 650; and Fuhrman v. California Satellite Systems, supra, 179 Cal. App.3d at p. 421.
IV
(7a) It remains only to apply the usual four-part test to husband‘s fifth cause of action, to determine if defendant‘s statements as to the psychologist‘s neutrality and independence were privileged under
As alleged in the complaint, the stipulation to retain a psychologist, and the discussion as to the specific psychologist to retain, occurred in the course of the marital dissolution proceeding. Defendant‘s statements regarding Dr. Adler‘s suitability were made by a participant, i.e., the attorney for a party. They were “reasonably related” to the action because custody and visitation arrangements are integral to all marital dissolution proceedings in which children are involved. (See
(8) The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that
(7b) Accordingly, it is clear that defendant‘s statements furthered the objects of the litigation and fall within the scope of the litigation privilege. The statements were made in the context of a judicial proceeding, were logically related to the action, played an integral role in the proceeding, and were made by one of the participants about an authorized participant. The privilege of
V
For the foregoing reasons, the judgment of the Court of Appeal is reversed as to the fifth cause of action with directions to reinstate the order of dismissal issued by the trial court as to all causes of action asserted against defendant Anderson.
Lucas, C.J., Mosk, J., Broussard, J., Panelli, J., Eagleson, J., and Kennard, J., concurred.
On March 12, 1990, the opinion was modified to read as printed above.