Prospective defamation clients sometimes ask about what lawyers commonly dub the “litigation privilege.” Civ. Code § 47(b). This privilege affords wide immunity from libel and slander claims to a person defending or suing for those torts. Notably, this broad protection is also generally thought to protect pre-litigation communications (such as a demand letter). That is not always true.
Lawyers pleading libel and slander can misunderstand the litigation privilege. This mistake can embarrass and substantially cost the client. If the defendant files an anti-SLAPP motion — which most counsel now consider essential — then understanding the litigation privilege may save your client from defeat at the outset – and from having to pay the defendant’s legal fees.
The Litigation Privilege is Absolute
Privileges in California are absolute or qualified. The litigation privilege is absolute. Aronson v. Kinsella (1997) 58 Cal.App.4th 254, 261-268. Even if the publisher libeled or slandered the otherwise-defamed person with actual malice, however scurrilous, a legal claim still fails in the face of 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. It arose from a pre-filing phone call and letter substantially over-stating the appellant’s criminal history. The defendant made the call and wrote the letter before investigating the plaintiff’s criminal record. The court found neither statement (call or letter) sought to achieve the objects of the litigation, and were unprotected by the litigation privilege.
Also see Silberg v. Anderson (1990) 50 Cal. 3rd 205, 212 (for a good history and application of the exceptions), and Kashian v. Harrison, (2002) 98 Cal. App. 4th 892.
Whether the litigation privilege protects publication of otherwise defamatory material in San Diego or Los Angeles 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 reactions to libel or slander in 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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