Nguyen v. Proton Technology Corp.
Decision Date | 12 January 1999 |
Docket Number | No. A082058,A082058 |
Court | California Court of Appeals Court of Appeals |
Parties | , 14 IER Cases 1238, 1999 Daily Journal D.A.R. 381, 98 Daily Journal D.A.R. 427 Daniel V. NGUYEN, Plaintiff and Appellant, v. PROTON TECHNOLOGY CORPORATION, et al.,Defendants and Respondents. |
Gregory L. Spallas, Phillips & Spallas LLP, San Luis Obispo, Fenn C. Horton III, Pahl & Gosselin, San Jose, Respondents.
This appeal presents the interesting issue of the extent to which the absolute litigation privilege provided by Civil Code section 47, subdivision (b), 1 protects statements made in pre-civil litigation demand letters or telephone calls which reflect discredit on individuals and are substantially extraneous to the threatened litigation. In reversing the summary judgment granted by the trial court in favor of the respondents, we hold that reasonable limits should and do exist on the type and character of prelitigation statements which are protected by the privilege.
Appellant was employed as sales representative of respondent Proton Technology Corporation (Proton) from approximately August 1995 until March 1996. Proton is a Fremont-based manufacturer of printed circuit boards. At least as of December 1995, appellant was employed by Proton through the Santa Clara County Probation Department's Work Furlough Program. The only communication in the record to Proton from that department does not recite any offense committed by appellant which brought him to that probationary status, but respondents' appendix includes material establishing that appellant had, in 1995, pled guilty to shooting a gun at an unoccupied vehicle (Pen.Code, § 247, subd. (b)) and vandalism (Pen.Code, § 594, subds. (a) and (b)(2).)
In March 1996, appellant, along with several others, left Proton and became employed by a San Jose-based printed circuit board manufacturer, Excelsior Manufacturing, Inc. (Excelsior). Proton became concerned that Excelsior was improperly soliciting its employees and customers, and consulted its attorneys, respondent Pahl & Gosselin, about filing a lawsuit to stop Excelsior from so doing. Accordingly, respondent Fenn Horton III, a litigation attorney with Pahl & Gosselin, sent a fax letter to Manny Lee, the chief executive officer of Excelsior. Insofar as pertinent to this litigation, the letter read:
This letter had been approved in advance by Proton's chief executive officer, Tony Wang. Indeed, it was Wang who advised Horton that appellant's conviction had been "for beating his wife." 4
On April 2, Excelsior's attorneys briefly responded to Horton's letter. This response recited an unfamiliarity with the details alleged by Horton, but generally denied his allegations of wrongdoing and requested that further communications to either Excelsior or any of its current employees be via them.
In early April, attorney Horton initiated communications with one Joseph Martinez of the Santa Clara County Probation Department, appellant's probation officer. This tactic had also been suggested to him by Wang. In his declaration in support of respondents' motion for summary judgment, Horton stated that he informed Martinez that appellant had terminated his work furlough program with Proton and been hired by Excelsior. He also "expressed concern that [appellant] had engaged in tortious business activities on Excelsior's behalf." According to Horton's declaration, Martinez promised to investigate the allegations. 5
Also early in April, Horton received a report on appellant's criminal record. In the process, he learned that he had been mistaken regarding the crimes for which appellant had been convicted. Several weeks later, on April 22, he wrote Excelsior's attorneys as follows:
On July 24, 1996, appellant filed a six count complaint in Alameda County Superior Court. Included in the complaint were causes of action for libel, slander, invasion of privacy, intentional infliction of emotional distress, and interference with economic relationship. The complaint was directed entirely to the March 29 letter to Excelsior and the telephone conversation or conversations Horton had with appellant's probation officer, Martinez. 6 A demurrer was sustained without leave to amend as to the two causes of action for invasion of privacy; it was overruled as to the other four causes of action.
After discovery, respondents filed motions for summary judgment in November 1997. These motions asserted that Horton's several communications were either absolutely protected by the litigation privilege of section 47(b) or, alternatively, qualifiedly privileged under Civil Code section 47, subdivision (c). The court granted both motions on the basis of the section 47(b) privilege.
Appellant filed a timely notice of appeal. 7
Section 47(b) provides that a communication made "[i]n any ... (2) judicial proceeding" is privileged. This privilege is absolute, not qualified, even when pre-litigation communications are implicated. (See Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 261-268, 68 Cal.Rptr.2d 305.)
Twice in this decade, our Supreme Court has explored both the purposes served and sorts of communications protected by the litigation privilege. In the leading case of Silberg v. Anderson (1990) 50 Cal.3d 205, 266 Cal.Rptr. 638, 786 P.2d 365 (Silberg ), the court explained the rationale of the privilege--then codified as section 47(2)--as follows: ...
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