California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

Continuing in our series on defamation defenses, today we're going to cover the defense of statements made in a judicial proceeding, also known as the litigation privilege.

A publication made in a judicial or quasi-judicial proceeding is absolutely privileged.  Civil Code § 47(b). This means that  you cannot prevail in a libel or slander case if the statements are privileged. In other words, the law allows people to make certain statements in certain settings, e.g., in a judicial proceeding.

The following requirements are necessary to meet the litigation privilege:

1. the communication must be made in a judicial or quasi-judicial proceeding;
2. by litigants or other participants authorized by law;
3. to achieve the objects of the litigation; and
4. the communication has some connection or logical relation to the action.

Silberg v. Anderson (1990) 50 Cal.3d 205, 212.

The primary purpose of the litigation privilege is to allow litigants and witnesses the freedom to use the courts without being worried that they'll be harassed by subsequent lawsuits. The litigation also promotes a more effective judicial system because it allows lawyers to vigorously advance their client's interests.

In short, the litigation privilege is one of the most powerful defamation defenses. It is also one of the more complicated defenses.

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Defamation Defense: Discharge of Official Duty

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An absolute privilege exists for statements made "[i]n the proper discharge of an official duty" under California Civil Code section 47(a). An absolute privilege is defined as a "privilege that immunizes an actor from suit, no matter how wrongful the action may be, and even though it is done with an improper motive."  Black's Law Dictionary, 7th Ed., p. 1215.

This means that any publication of a statement made by a person in the proper discharge of an official duty is absolutely immunized.

So when does this defense/privilege apply?

First, the statement must be made by a public official (in other words, only government officials). The official duty privilege does not apply to private individuals. For example, a court held that a district attorney was acting in the discharge of an official duty when he issued a press release regarding alleged violations of the Brown Act.

Second, the statement must be made in the public official's official capacity. If not, the privilege does not apply.

If you liked this post please subscribe to the California Defamation Law Newsletter to receive a FREE copy of the "The Ultimate Beginner's Guide To Defamation Law."

Related Posts:

What Are the Defenses To A Claim For Defamation?

Truth Is A Defense To A Claim Of Defamation

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The Second District of the California Court of Appeals published two cases involving defamation in the span of one week.  The first case involved the Staples Center Owners and this next case deals with a little known issue--the litigation privilege.

The Appellants were defendants in an earlier case where the plaintiffs offered to dismiss one of the defendants on certain conditions.  The plaintiffs in that case sent a settlement letter to the defendants, which the defendants contended was unethical because it sought to create a conflict of interest so that defendant's attorney, in effect, would not able to represent any of the defendants. The defendants sued the plaintiffs for intentional interference with contractual relations and negligence.

The plaintiffs filed an anti-SLAPP motion and they prevailed because the court held that the litigation privilege applied to the settlement letter.

The decision was appealed and was then affirmed.

While this decision is not surprising since a purpose of the litigation privilege is to "promote[] the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests," what is interesting is how the court compared the privilege to the Rules of Professional Conduct.

In short, the court said that the litigation privilege trumps the Rules of Professional Conduct.  This is a powerful statement!

It underscores the importance the court of appeal places on the litigation privilege.

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