The Litigation Privilege

What is The Litigation Privilege?

The Litigation Privilege: When Does It Shield Defamatory Statements in Los Angeles, Irvine, and San Diego?

Prospective defamation clients sometimes ask about what is commonly called the “litigation privilege.” Civ. Code § 47(b). This privilege affords immunity from libel and slander claims to a person in the process of suing or being sued for those torts and, now, most other causes of action. Notably, this considerable protection is also widely thought to cover pre-litigation communications (such as a demand letter). That is not necessarily true.

The litigation privilege is often overlooked or misunderstood by lawyers pleading defamation. Either error can be embarrassing and costly. For example, if the defendant files an anti-SLAPP motion — which most defamation counsel now consider the Maginot Line — then understanding the litigation privilege may save your client from complete defeat at the outset – and from having to pay the defendant’s legal fees. Schedule a confidential consultation with an attorney who truly understands litigation privilege in California to avoid these embarrassing and costly errors in your case.

Litigation Privilege is Absolute

Privileges in California are either absolute or qualified. The litigation privilege is absolute.Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 261-268. This means that even if the alleged libel or slander is made with actual malice, however scurrilous, a legal claim based on it is still privileged, i.e., protected speech.

“The usual formulation is that this 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.” Nguyen v. Proton Technology Corp., (1999) 69 Cal.App.4th 140 at 147.

The Nguyen case involved both slander and libel. Material to the case were a pre-filing phone call and letter substantially over-stating the appellant’s criminal history – the call made and the letter written before the defendant had investigated the plaintiff’s criminal record. The court found that neither statement sought to achieve the objects of the litigation and were thus unprotected by the litigation privilege.

See also: Silberg v. Anderson (1990) 50 Cal. 3rd 205, 212, and Kashian v. Harrison, (2002) 98 Cal. App. 4th 892.

The question whether a publication of otherwise defamatory material in San Diego or Los Angeles is protected by the litigation privilege is a matter of law, not of fact. “[W]here the facts and circumstances under which a defamatory publication was made are undisputed, the question of privilege is a matter of law.” Costa v. Superior Court (1984) 157 Cal.App.3d 673, 678. This legal review can relate to prelitigation libel or slander in terms of their relevancy to the case.

The bottom line is that “…section 47(b) [which includes the litigation privilege] does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals.” (Nguyen, supra, at p. 150).

The litigation privilege is absolute. Whether it shields a particular defamatory statement is another question.

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