California’s Litigation Privilege is Absolutely Absolute

I receive calls every week from potential clients wanting to sue for defamation for something said in court or in a court document. I’ve written about this here before, but let me state the definitive rule up front and then explain why it is the rule.

You can’t sue for statements made in court or court documents, no matter how false, vile, or damaging.

This is called the Litigation Privilege, and the privilege is absolute. Let’s use a common scenario to show the interaction of the law and how such a case would play out.

Bob and Barb are divorcing and are embroiled in a hotly contested custody battle over their five-year-old son Billie. In a court document, Barb states the Bob is a terrible parent who should not get custody, because the once left Billie in a hot car for hours while he shopped for an RV.

Bob is outraged, because the never happened. He has never shopped for an RV – he doesn’t even want an RV – and he certainly never left Billie in a hot car. He wants to sue Barb for defamation, both because he thinks it will help with the custody battle, and because Barb has made this lie a matter of public record, and it could harm his budding career as an actor.

So he finds himself a personal injury attorney, who has no specific knowledge about defamation cases, but figures it can’t be that much different than any other personal injury tort. The attorney files a complaint against Barb for defamation for what she said in the court document.

Two statutes immediately come into play.

The first is Code of Civil Procedure § 425.16, which is the anti-SLAPP statute. It provides:

(b) (1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

So what the heck is an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue”? Well, the California Legislature was kind enough to define that in subpart (e), which provides:

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, . . .  (Emphasis added.)

As you can see, any oral or written statement made in court, or in connection with an issue under consideration by a court, is protected by the anti-SLAPP statute.

Does that mean the complaint will be stricken, just because the statement falls under the anti-SLAPP statute? Well, conceptually no, but in reality, yes.

You see, the anti-SLAPP analysis has two prongs. First the defendant bringing the anti-SLAPP motion (also called a Special Motion to Strike) has to show the speech falls under the anti-SLAPP statute, as set forth above.

But even if that showing is made, that just means that the Plaintiff then has the burden to show that his defamation action is more likely than not to succeed. Ok, no problem. Bob will just show his evidence to prove that he never left Billie in a hot car. Easy peasy. In fact, since an anti-SLAPP motion could potentially deprive Bob of his constitutionally guaranteed right to a trial, the law requires that Bob’s evidence must be taken as true. The judge is not permitted to weigh the evidence. So Bob can provide a single declaration stating under penalty of perjury that he never left Billie in a hot car, and that would trump 1,000 declarations from Barb’s witnesses saying that he did.

“Well that doesn’t sound very absolute,” you say. Thank you for engaging.

That was the conceptual part, but now comes the reality. From the back of the room, Civil Code § 47 raises its hand and says, “I think you forgot about me.” Civil Code § 47 provides, in pertinent part:

A privileged publication or broadcast is one made:

(b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law . . .

Again, there is a privilege attached to statements made in judicial proceedings, and it does not matter how false they might be.

The litigation privilege is absolute; it applies, regardless whether the communication was made with malice or the intent to harm. Put another way, application of the privilege does not depend on the publisher’s “motives, morals, ethics or intent.” Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having “some relation” to a judicial proceeding, and to all torts other than malicious prosecution. Moreover, “[t]he litigation privilege is not limited to the courtroom, but encompasses actions by administrative bodies and quasi-judicial proceedings. The privilege extends beyond statements made in the proceedings, and includes statements made to initiate official action. [That’s why reports to the police are protected.] The absolute privilege exists to protect citizens from the threat of litigation for communications to government agencies whose function it is to investigate and remedy wrongdoing. The privilege is based on ‘[t]he importance of providing to citizens free and open access to governmental agencies for the reporting of suspected illegal activity.’ (Wise v. Thrifty Payless, Inc., 83 Cal.App.4th at 1303 (holding privilege applies to husband’s report to DMV regarding wife’s drug use and its possible impact on her ability to drive.)

Kashian v. Harriman (2002) 98 Cal.App.4th 892, 913.

A privileged statement is exactly that . . . privileged. It cannot be the basis for any liability, because it is protected. So it doesn’t matter what claim is employed, the speech is protected.

Back to Bob and the two prong anti-SLAPP analysis. Once it has been established that the claim arises from “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body,” under section 425.16, then section 47 comes squarely into play, and the plaintiff faces the impossible task of overcoming that section’s absolute privilege to satisfy the second prong analysis.

There is no evidence Bob can present that will show that he is more likely than not to succeed on his defamation claim (or another claim) since it cannot be based on the statement made in conjunction with the legal proceeding.

There is one tiny exception that as you can imagine never arises, but did in one case. In Lefebvre v. Lefebvre, the wife had admitted that she had lied, making the statement illegal, and the court therefore ruled that the statutes do not protect illegal speech. But this rule only applies if the falsity is admitted. If the falsity is in any way disputed, the absolute rule applies.

Poor Bob. He will lose the anti-SLAPP motion brought by Barb’s attorney, and he will have to reimburse Barb for all the legal fees she paid.

Don’t be Bob. You can’t sue for statements made in court and court documents. That does not mean that parties are free to lie with impunity in court, it just means that you can’t sue them for doing so.