Court of Appeal Rules Litigation Privilege Bars Suit Based on Constitutional Right to Privacy

Thursday, March 2, 2006

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Court of Appeal Rules Litigation Privilege Bars Suit Based on Constitutional Right to Privacy

By DAVID WATSON, Staff Writer

The immunity from suit afforded by Civil Code Sec. 47(b) for communications made in the course of litigation is absolute and applies to actions based on the right to privacy embodied in Art. I, Sec. 1 of the California Constitution, the Third District Court of Appeal ruled yesterday.

The court overturned a $30,000 jury verdict obtained by a man accused of having molested his 5-year-old nephew in 1993, when he was 15. The panel took issue with two First District decisions holding that the Sec. 47(b) privilege must be balanced against the interest protected by the constitutional provision, calling them “incorrectly decided.”

Evidence of the alleged molestation was contained in records maintained by the Shasta County Victim Witness Program and became part of a court dispute over visitation in neighboring Tehama County. No charges were ever filed against the uncle, but the alleged victim’s parents successfully applied for benefits from the Witness Program, which made a finding based on a preponderance of the evidence that the molestation had occurred.

Government Code Secs. 13950(a) and 13955 authorize compensation for the victim of any “criminal act,” regardless of whether there was a prosecution or a conviction. Program officials make their findings based on police reports and medical records.

The alleged victim’s mother later divorced the child’s father ñ the brother of the alleged perpetrator ñ and remarried. Family Court orders limiting contact between the child and his father’s relatives became the subject of the Tehama County dispute.

The mother, fearing that the court would allow contact between her son and his uncle, approached Witness Program officials in 2003, seeking documentation of the abuse allegation. A supervisor wrote a letter for her stating that the molestation had been “established.”

When he provided the letter, the supervisor was unaware that the child’s uncle had been a minor at the time of the alleged molestation.

The mother passed the letter on to her husband, who attached it to a declaration opposing changes in visitation and filed it in Tehama Superior Court. When the uncle learned of the letter, he sued Shasta County and the Witness Program supervisor who wrote the letter.

At the conclusion of the plaintiff’s evidence, Shasta Superior Court Judge Jack Halpin granted a motion for nonsuit on the uncle’s defamation, negligence, and common law invasion of privacy causes of action, but allowed jurors to consider the constitutional privacy claim. Halpin cited the First District appellate ruling in Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal.App.4th 345.

Writing for the Third District yesterday, Justice M. Kathleen Butz noted that the district had previously taken issue with Cutter v. Brownbridge (1986) 183 Cal.App.3d 836, the First District decision that served as the basis for the holding in Jeffrey H.

In Wise v. Thrifty PayLess, Inc. (2000) 83 Cal.App.4th 1296, she pointed out, the Third District rejected the view that resolving a conflict between the Sec. 47(b) privilege and the constitutional privacy right required application of a balancing test.

“We adhere to the view we expressed in Wise and believe that Cutter and Jeffrey H. were incorrectly decided....,” the justice declared.

Citing Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, Butz argued that the state’s high court has “repeatedly said that, for strong policy reasons, only the tort of malicious prosecution survives the litigation privilege.”

The First District’s reliance on Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1 to “support the use of a balancing test in deciding whether the privilege applies—is clearly misplaced,” the justice asserted.

Hill, Butz said, “makes clear that this test is one to be used by the trier of fact to determine whether the defense of justification applies. The high court itself has never ‘balanced’ the importance of any tort against the litigation privilege. On the contrary, it has consistently stated that the purpose of the privilege can only be served by according the publisher complete immunity from tort liability. Jeffrey H. goes off course by using a balancing test to decide whether to give effect to a privilege that, by its very nature, is absolute.”

Even applying the balancing test of Cutter and Jeffrey H., Butz continued, Halpin should have ended the trial, since the defendants “lacked knowledge that certain information in the letter constituted an invasion of [the uncle’s] privacy and because the material in the letter was of direct relevance to an ongoing family law proceeding.”

The opinion authored by Butz was joined by Justices George Nicholson and Fred K. Morrison.

The case is Jacob B. v. County of Shasta, C049794.