Gootee v. Lightner

• Decision Date: 24 September 1990
• Docket Number: No. D010257,D010257
• Citation: 224 Cal.App.3d 587,274 Cal.Rptr. 697
• Court: California Court of Appeals Court of Appeals
• Parties: Michael GOOTEE, et al., Plaintiffs and Appellants, v. Marshall LIGHTNER, et al., Defendants and Respondents.

Page 697

274 Cal.Rptr. 697

224 Cal.App.3d 587

Michael GOOTEE, et al., Plaintiffs and Appellants, v. Marshall LIGHTNER, et al., Defendants and Respondents.

No. D010257.

Court of Appeal, Fourth District, Division 1, California.

Sept. 24, 1990.

As Modified Oct. 12, 1990.

[224 Cal.App.3d 589] Karen E. Stawiecki, San Diego, for plaintiffs and appellants.

Jaret, Caudill & Kuehn, Brandt Caudill and James C. Chaney, San Diego, for defendants and respondents.

FROEHLICH, Associate Justice.

Appellant Michael Gootee (individually and as guardian ad litem for Janna and Lisa Gootee) appeals from the judgment entered in favor of respondents Marshall Lightner and The Family Alliance (respondents) following an order granting respondents' motion for summary judgment based on the absolute privilege of Civil Code section 47(2). ¹ Appellant's complaint sought damages from respondents for professional malpractice based on alleged intentional and negligent conduct. The alleged malpractice occurred during the course of psychological testing and evaluation performed in connection with certain judicial proceedings. We agree that appellant's claims are barred by the absolute privilege provided by Civil Code section 47(2), and therefore affirm the judgment.

1. Factual Background

The undisputed material facts upon which respondents' summary judgment motion was granted are relatively simple. In mid-1985, Irene (appellant's former wife) filed a petition for change of custody, seeking custody of her three minor children who were then residing with appellant. The parties stipulated, through their counsel, to undergo psychological testing and evaluation in the context of the child custody proceeding, and stipulated to retain respondents to perform the evaluation and provide recommendations to the court. Lightner was not retained to provide therapy but instead was retained by the parties to evaluate the family in connection with the custody matter. After conducting various tests and interviews, Lightner prepared a report, and subsequently testified, recommending Irene have physical custody with liberal visitation rights for appellant.

Custody apparently was awarded to Irene, allegedly based in part upon respondents' recommendations. After subsequent litigation, however, custody apparently was returned to appellant.

Thereafter, appellant sued respondents for professional negligence, alleging Lightner (1) had been negligent in administering and interpreting the tests, and (2) had destroyed certain raw test data (i.e., a tape recording of part of a testing session). Such data, appellant alleges, impeded his ability to have the test results reinterpreted by the expert psychologist he retained to testify at the custody hearing, and also impeded his ability to cross-examine Lightner at the hearing.

Respondents moved for summary judgment, contending the absolute privilege afforded by Civil Code section 47(2) barred appellant's claims against respondents. Appellant opposed the motion by contending respondents owed a duty of care to appellant in conducting the evaluation, and that Civil Code section 47(2) could not insulate an expert witness from liability for breach of his duty of care. Appellant's opposition to the motion for summary judgment does not specifically challenge the fundamental facts upon which respondents relied to demonstrate the applicability of the privilege, but instead focuses on alleged negligent and ethical errors by Lightner.

The trial court granted the motion for summary judgment, reasoning that even if respondents' actions negligently or intentionally breached some duty of care owed to appellant, the privilege applied to bar liability for both the testimony provided by respondents and the preparatory activities taken in contemplation of testifying. Following entry of judgment, appellant appealed.

2. Contentions on Appeal

Appellant argues that respondents owed him a duty of due care, and that there is no authority or public policy reason to apply the privilege accorded by Civil Code section 47(2) to negligent acts committed by experts retained to testify. Respondents argue the privilege does apply under the rationale recently enunciated in Silberg v. Anderson (1990) 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365, or alternatively, the quasi-judicial privilege should be extended to shield experts such as respondents whose role is functionally that of a referee or court investigator. ²

3. Standard of Review

The purposes and standards for summary judgment are well established. "The purpose of the summary procedure is to penetrate through evasive language and adept pleading and ascertain the existence or absence of triable issues [citations]." (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310.) The trial judge determines whether triable issues exist by examining the affidavits and evidence before him, including any reasonable inferences drawable from the facts before him. (People v. Rath Packing Co. (1974) 44 Cal.App.3d 56, 61-64, 118 Cal.Rptr. 438.) While "... the affidavits of the moving party are to be strictly construed and those of the opponent liberally construed [citations], ... a party opposing a motion for summary judgment which is supported by affidavits or declarations sufficient to sustain the motion, has the burden of showing that triable issues of fact exist." (Chern v. Bank of America supra, 15 Cal.3d at p. 873, 127 Cal.Rptr. 110, 544 P.2d 1310.)

Where the operative facts are undisputed, the question of the application of privilege is a matter of law (see, e.g., Goodley v. Sullivant (1973) 32 Cal.App.3d 619, 625-626, 108 Cal.Rptr. 451), and summary judgment is proper where the facts show the gravamen of the action is barred by the privilege as a matter of law. (See, e.g., Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 393-394, 182 Cal.Rptr. 438.) We conclude the trial court correctly ruled there were no triable issues of material fact and appellant's claims were barred by the privilege.

4. The Testimonial Privilege Bars Tort Claims, Other Than for Malicious Prosecution, Against an Expert Witness Whose Sole Function Was to Evaluate for Purposes of Testifying in Court Proceedings

It is undisputed that respondents' role was a limited one: to evaluate the partisans in the custody matter for purposes of testifying concerning the custody dispute. ³ Because the gravamen of appellant's claim relies on negligent or intentional tortious conduct committed by respondents in connection with the testimonial function, we conclude the absolute privilege bars civil lawsuits (other than for malicious prosecution) seeking to impose liability on respondents for such misfeasance.

In Silberg v. Anderson, supra, 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365, our Supreme Court extensively analyzed the nature and purpose of the privilege provided by Civil Code section 47(2) in circumstances analogous to this case. In Silberg, the parties to a dissolution proceeding stipulated to retain an independent psychologist to evaluate the parties and make recommendations concerning custodial issues. Husband was dissatisfied with the resulting orders, and therefore sued his wife's attorney for failing to disclose a preexisting relationship with the psychologist which purportedly influenced the psychologist to give a biased, inaccurate and defamatory report to the court. Husband pled theories of negligent and intentional tortious misconduct. (Id. at pp. 210-211, 266 Cal.Rptr. 638, 786 P.2d 365.) Attorney successfully demurred to all of the claims based on the Civil Code section 47(2) privilege, which the Court of Appeal upheld as to all negligence claims but reversed as to all intentional tort claims. (Ibid.)

The Supreme Court thereafter held the privilege applied to all of the claims, including claims based on intentionally tortious acts. The court noted the privilege was designed to promote numerous policies: to ensure free access to the courts by eliminating the fear of harassment from derivative tort actions; to promote complete and truthful testimony by freeing witnesses from the intimidation caused by fear of costly lawsuits; and to encourage zealous advocacy by freeing lawyers from the concern of derivative lawsuits. (Id. at pp. 213-214, 266 Cal.Rptr. 638, 786 P.2d 365.) A final policy noted by the court was to avoid unending litigation and give finality to judgments:

"[The immunity] places upon the 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. [Citations.] The instant case is an example in point. During the dissolution proceedings, the husband had every opportunity to challenge the validity of [the] psychological evaluation and recommendations. He could have engaged another psychologist, attempted to impeach the credibility of [the psychologist] 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. [p] 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 ... would impermissibly burden, if not inundate, our justice system. [Citations.]" (Id. at p. 214, 266 Cal.Rptr. 638, 786 P.2d 365.)

The Silberg court, after recognizing the important policies promoted by the privilege, then applied the test for applicability of the privilege and found the attorney's conduct ...