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 Civil Code section 47, subdivision 2.
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.
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,
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 section 47(2). The trial court sustained the demurrer to all causes of action without leave to amend and entered a judgment of dismissal as to defendant.
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.
Defendant petitioned for review, asserting, in essence, that the privilege delineated in section 47(2) is absolute in nature and applies to all torts save malicious prosecution, and that the Court of Appeal decision, and the line of decisions upon which it relied for its "interest of justice" test, are inconsistent with the absolute nature of the privilege and its underlying policy purposes. We granted review and now confront the question whether the privilege under section 47(2) is subject to an "interest of justice" exception.
In furtherance of the public policy purposes it is designed to serve, the privilege prescribed by section 47(2) has been given broad application.
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 section 47(2) for those communications not made for the purpose of promoting the "interest of justice." (See Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 826 [106 Cal.Rptr. 718]; Kinnamon v. Straitman & Snyder (1977) 66 Cal.App.3d 893, 897 [136 Cal.Rptr. 321]; Earp v. Nobmann (1981) 122 Cal.App.3d 270, 284 [175 Cal.Rptr. 767]; Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal.App.3d 319, 333 [213 Cal.Rptr. 168]; Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 421 [231 Cal.Rptr. 113]; McKnight v. Faber (1986) 185 Cal.App.3d 639, 649 [230 Cal.Rptr. 57].) In the instant case, the Court of Appeal applied this "interest of justice" test in holding that the pleadings gave rise to disputed questions of fact.
1. Policies Furthered by Section 47(2)
Section 47(2) promotes the effectiveness of judicial proceedings by encouraging "open channels of communication and the presentation of evidence" in judicial proceedings. (McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 970 [234 Cal.Rptr. 702].) A further purpose of the privilege "is to assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing." (Imig v. Ferrar (1977) 70 Cal.App.3d 48, 55 [138 Cal.Rptr. 540]; Tiedemann v. Superior Court (1978) 83 Cal.App.3d 918, 925 [148 Cal.Rptr. 242].) Such open communication is "a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings." (Pettitt v. Levy, supra, 28 Cal. App.3d at pp. 490-491.) Since the "external threat of liability is destructive of this fundamental right and inconsistent with the effective administration of justice" (McClatchy Newspapers, Inc. v. Superior Court, supra, 189 Cal. App.3d at p. 970), courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings.
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,
Section 47(2) further promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests. "[I]t is desirable to create an absolute privilege ... not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions...." (Thornton v. Rhoden (1966) 245 Cal.App.2d 80, 99 [53 Cal.Rptr. 706, 23 A.L.R.3d 1152].)
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 section 47(2), the litigation privilege, has been referred
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, section 47(2) has been held to immunize defendants from tort liability based on theories of abuse of process (Drasin v. Jacoby & Myers (1984) 150 Cal.App.3d 481 [197 Cal.Rptr. 768]; Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121; Asia Investment v. Borowski (1982) 133 Cal.App.3d 832 [184 Cal.Rptr. 317, 30 A.L.R.4th 561]; Umansky v. Urquhart (1978) 84 Cal.App.3d 368 [148 Cal.Rptr. 547]; Twyford v. Twyford (1976) 63 Cal.App.3d 916 [134 Cal.Rptr. 145]; Younger v. Solomon (1974) 38 Cal.App.3d 289 [113 Cal.Rptr. 113]; Thorton v. Rhoden, supra, 245 Cal.App.2d 80, 99; but see Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1165), intentional infliction of emotional distress (Ribas v. Clark, supra, 38 Cal.3d 355; Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121; Lerette v. Dean Witter Organization, Inc., supra, 60 Cal.App.3d 573; Pettitt v. Levy, supra, 28 Cal.App.3d 484; Kachig v. Boothe, supra, 22 Cal.App.3d 626; Agostini v. Strycula (1965) 231 Cal.App.2d 804 [42 Cal.Rptr. 314]), intentional inducement of breach of contract (Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121; Agostini v. Strycula, supra, 231 Cal.App.2d 804), intentional interference with prospective economic advantage (Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121), negligent misrepresentation (Pettitt v. Levy, supra, 28 Cal.App.3d 484), invasion of privacy (Ribas v. Clark, supra, 38 Cal.3d 355), negligence (Pettitt v. Levy, supra, 28 Cal.App.3d 484) and fraud (Carden v. Getzoff, supra, 190 Cal.App.3d 907; Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642-643 [226 Cal.Rptr. 694]; Portman v. George McDonald Law Corp. (1979) 99 Cal.App.3d 988, 989-990 [160 Cal.Rptr. 505]; Pettitt v.
That the privilege is absolute is also confirmed by the statutory language.
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 section 47(2) does not apply to conduct but is
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
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 § 4600 et seq.) Moreover, where custody and visitation arrangements are contested issues, the state requires that mediation be conducted by a qualified counselor (§ 4607; Code Civ. Proc., § 1745) who is directed to perform an evaluation and formulate recommendations if not sought voluntarily by the parties to the dissolution.
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.
Section 47(2) provides in relevant part: "A privileged publication or broadcast is one made — [¶] 2. In any ... (2) judicial proceeding ... provided, that an allegation or averment contained in any pleading or affidavit filed in an action for divorce ... made of or concerning a person by or against whom no affirmative relief is prayed in such action shall not be a privileged publication or broadcast as to the person making said allegation or averment within the meaning of this section unless such pleading be verified or affidavit sworn to, and be made without malice, by one having reasonable and probable cause for believing the truth of such allegation or averment and unless such allegation or averment be material and relevant to the issues in such action."