Silberg v. Anderson

• Citation: 266 Cal.Rptr. 638,50 Cal.3d 205,786 P.2d 365
• Decision Date: 26 February 1990
• Docket Number: No. S007056,S007056
• Parties: , 786 P.2d 365 Barry Neil SILBERG, Plaintiff and Appellant, v. Margaret ANDERSON, Defendant and Respondent.
• Court: United States State Supreme Court (California)

Page 638

266 Cal.Rptr. 638

50 Cal.3d 205, 786 P.2d 365

Barry Neil SILBERG, Plaintiff and Appellant, v. Margaret ANDERSON, Defendant and Respondent.

No. S007056.

Supreme Court of California In Bank.

Feb. 26, 1990.

As Modified March 12, 1990.

William B. Daniels II, and Laurie Richards Shoch, Sebastopol, for plaintiff and appellant.

Moore, Clifford, Wolfe, Larson & Trutner, Peter Dixon, Tammy L. O'Leary, Oakland, Kornblum, Kelly & Herlihy, Los Angeles, Kornblum & McBride and William B. Boone, San Francisco for defendant and respondent.

Proskauer, Rose, Goetz & Mendelsohn and Steven G. Drapkin, Los Angeles, as amici curiae on behalf of defendant and respondent.

KAUFMAN, Justice. ^*

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. ¹ We conclude that the decision of the Court of Appeal in the instant case, and the line of cases on which it relied in adopting the so-called "interest of justice" test, are inconsistent with the absolute nature of the litigation privilege and its underlying policy purposes. We therefore disapprove the line of cases employing the "interest of justice" test and reverse the judgment of the Court of Appeal with directions to reinstate the judgment of dismissal issued by the trial court.

I

This action arises from a marital dissolution proceeding in which defendant, Margaret Anderson, was the attorney for the wife of Harry Silberg (hereafter husband), the plaintiff in this action. 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; 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." Husband asserts that defendant's breach of contract, negligence, negligent misrepresentation, and "intentional tort" caused him the loss of reasonable visitation arrangements with his children, damage to his reputation in the community and emotional distress. He seeks both compensatory and punitive damages.

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. ³ The Court of Appeal concluded defendant's representations were not privileged under section 47(2) if they were made to achieve personal objectives or to gain an advantage for her client through artifice or deceit, reasoning that in that case they could not have been made to promote the "interest of justice." The court further reasoned that whether the statements were made for such purposes was a question of fact not subject to resolution on demurrer. Accordingly, the Court of Appeal determined that husband should be allowed to amend his "intentional tort" cause of action to allege an "improper objective in the procurement of Dr. Adler's services," which, under its reasoning, would preclude application of section 47(2) and allow husband to proceed on 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.

II

In furtherance of the public policy purposes it is designed to serve, the privilege prescribed by section 47(2) has been given broad application. Although originally enacted with reference to defamation (see Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1163, 232 Cal.Rptr. 567, 728 P.2d 1202), the privilege is now held applicable to any communication, whether or not it amounts to a publication (see e.g., Rosenthal v. Irell & Manella (1982) 135 Cal.App.3d 121, 126, 185 Cal.Rptr 92; Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 390, 182 Cal.Rptr. 438; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 577, 131 Cal.Rptr. 592), and all torts except malicious prosecution. (Albertson v. Raboff (1956) 46 Cal.2d 375, 382, 295 P.2d 405; Kilgore v. Younger (1982) 30 Cal.3d 770, 778, 180 Cal.Rptr. 657, 640 P.2d 793; Block v. Sacramento Clinical Labs, Inc., supra, 131 Cal.App.3d 386, 390-392, 182 Cal.Rptr. 438; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489, 104 Cal.Rptr. 650.) Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. (Albertson v. Raboff, supra, 46 Cal.2d 375, 381, 295 P.2d 405; Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121, 126, 185 Cal.Rptr. 92; Pettitt v. Levy, supra, 28 Cal.App.3d 484, 489, 104 Cal.Rptr. 650.)

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. Staitman & 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.

It is, of course, true that "justice," in the sense of "fairness," is not served where an attorney seeks to deceive a party into relying on an expert by misrepresenting the expert's impartiality. However, the evils inherent in permitting derivative tort actions based on communications during the trial of a previous action are, as we explain below, far more destructive to the administration of justice than an occasional "unfair" result. Accordingly, we disapprove the decisions announcing or employing the "interest of...