I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch.

1-I

Cal. Prac. Guide Family L. Ch. 1-I

California Practice Guide--Family Law
Database updated July 2015
Judge William P. Hogoboom (Ret.) and Justice Donald B. King (Ret.); Contributing Authors: Judge Kenneth A.
Black (Ret.), Judge Thomas Trent Lewis, Michael Asimow, Bruce E. Cooperman
Chapter 1. The First Client Interview

I. Liability Concerns in Handling Clients Case

1. [1:421] Attorney Professional Negligence (Malpractice) Exposure
a. [1:422] Standard of care
(1) [1:422.1] Discovery pursuant to family centered case resolution plan presumed to satisfy attorneys duty of
care concerning existence of community property
b. [1:423] Damages liability
(1) [1:424] Economic losses
(2) Emotional distress
(a) [1:425] Generally not recoverable
(b) [1:426] Compareegregious malpractice; breach of fiduciary duty
c. [1:427] Compareordinarily no malpractice liability to third parties
(1) [1:428] No malpractice liability to

opposing party
new spouse

(2) [1:430] No malpractice liability to dissolution clients

(3) [1:431] No malpractice liability to custodial parent in county-initiated child support enforcement proceedings
2. [1:435] Tort Liability for Meritless Litigation and Abusive Litigation Tactics
a. [1:436] No malicious prosecution cause of action arising out of family law case
(1) [1:437] Rationale
(a) [1:437.1] Unique propensity for bitterness in family law cases
(b) [1:437.2] Sanctions remedy to curb abusive tactics at source
(c) [1:437.3] Chilling effect on meritorious motions/OSCs
(2) [1:438] Applicationno malicious prosecution liability for meritless subsidiary motions/OSCs
(3) [1:440.5] Applicationno malicious prosecution liability based on false child abuse allegations
(4) [1:440.10] Same result despite inadequacy of family law remedies
(5) [1:441] Compareordinary civil actions originating in family law proceedings
b. [1:442] Abuse of process
c. [1:443] Infliction of emotional distress
d. [1:444] Attorney-client civil conspiracy
e. [1:445] Litigation privilege defense ()
(1) [1:446] Torts subject to privilege

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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

2. [1:435] Tort Liability for Meritless Litigation and Abusive Litigation Tactics: As a matter of ethics,
counsel should of course decline cases that appear blatantly lacking in legal merit or intended solely to harass or
injure other persons (see 1:192 ff.). Also, as a matter of ethics, they should avoid harassing and deceptive
litigation tactics. Apart from ethical violations, however, meritless litigation and unwarranted litigation tactics
could expose the offending parties (counsel, client and witnesses included) to civil damages liability for a range
of potential torts although, as discussed below, the potential tort causes of action arising out of a family law
case are limited.
a. [1:436] No malicious prosecution cause of action arising out of family law case: In general civil
litigation, bringing suit maliciously and without probable cause may support a subsequent action against
client and attorney for malicious prosecution. [Crowley v. Katleman (1994) 8 C4th 666, 676, 34 CR2d 386,
389; Soukup v. Law Offices of Herbert Hafif (2006) 39 C4th 260, 292, 46 CR3d 638, 663; see also Zamos v.
Stroud (2004) 32 C4th 958, 970, 973, 12 CR3d 54, 63-64, 65attorney malicious prosecution liability may
also be based on continued prosecution of properly-initiated lawsuit after learning it lacks probable cause]
But a bright line rule closes the door to malicious prosecution claims arising out of domestic relations
motions, OSCs and most other proceedings in a family law action. [Bidna v. Rosen (1993) 19 CA4th 27, 37,
23 CR2d 251, 257-258; Begier v. Strom (1996) 46 CA4th 877, 886-888, 54 CR2d 158, 163-165; see S.A. v.
Maiden (2014) 229 CA4th 27, 36-37, 176 CR3d 567, 572-573Bidna reasoning applies to bar malicious
prosecution action based on requests for domestic violence restraining orders (1:440.3); Siam v. Kizilbash
(2005) 130 CA4th 1563, 1572-1574, 31 CR3d 368, 376-377Bidna reasoning also applies to bar malicious
prosecution action based on unsuccessful CCP 527.6 civil harassment petitions; but see also 1:441]
(1) [1:437] Rationale: The bright line bar is an outgrowth of a weighing of the competing considerations
for and against the cause of action in family law cases; but, in the final analysis, it is supported by a basic
judicial policy in favor of curbing the evil of abusive litigation at its source rather than allowing it to
metastasize into yet more litigation. [Bidna v. Rosen, supra, 19 CA4th at 37, 23 CR2d at 258]
(a) [1:437.1] Unique propensity for bitterness in family law cases: Bitterness and emotional distress
often form a background noise in family law litigation, making it extremely difficult to distinguish
truly malicious motions and OSCs from ordinary ones. [Bidna v. Rosen, supra, 19 CA4th at 35, 23
CR2d at 256; see also Green v. Uccelli (1989) 207 CA3d 1112, 1121-1122, 255 CR 315, 319-322]
(b) [1:437.2] Sanctions remedy to curb abusive tactics at source: Further, family law courts have
the unique ability to promptly discourage litigation nonsense at its source by way of a fees and costs
sanction order (Fam.C. 271, 1:488, 14:230). Section 271 sanctions for uncooperative conduct
frustrating the policy of the law to encourage settlement and reduce litigation costs are common
considerations in family law motion and OSC hearings. [Bidna v. Rosen, supra, 19 CA4th at 35, 23
CR2d at 256 (emphasis in original); see also Fam.C. 3027.1sanctions for false allegations of child
abuse or neglect (7:318.1 ff.)]
It would be absurd to allow a separate malicious prosecution action to be filed when full compensation
for any loss incurred in responding to an inappropriate motion can be obtained in the underlying action
as part of the hearing on the motion.
[Green v. Uccelli, supra, 207 CA3d at 1123, 255 CR at 320-321 (also noting disciplinary action is
another remedy to redress attorneys unprofessional conduct); see also Sheldon Appel Co. v. Albert &
Oliker (1989) 47 C3d 863, 873, 254 CR 336, 341 (dictum expressing preference for use of
court-imposed sanctions rather than any expansion of circumstances supporting malicious prosecution
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

remedy to curb unjustified litigation)]

(c) [1:437.3] Chilling effect on meritorious motions/OSCs: Family law remedies require a special
sensitivity and flexibility. The risk that an unsuccessful OSC or motion might draw a separate malicious
prosecution action could have a chilling effect on the ability to obtain meritorious OSC/motion relief.
This chilling effect particularly runs counter to strong public policy favoring access to the courts in
support and custody matters. [Bidna v. Rosen, supra, 19 CA4th at 35, 23 CR2d at 256; Green v. Uccelli,
supra, 207 CA3d at 1121-1122, 255 CR at 319-322; see also Chauncey v. Niems (1986) 182 CA3d 967,
979, 227 CR 718, 727 (emphasizing need for flexibility in family law matters)]
(2) [1:438] Applicationno malicious prosecution liability for meritless subsidiary motions/OSCs:
Meritless motions and OSCs in a family law action (or any ongoing proceeding) must be redressed in the
underlying action itselftypically, by seeking sanctions (see 1:485 ff.).
Such subsidiary proceedings in an ongoing action lack sufficient independent existence to support a
malicious prosecution cause of action and, in family law proceedings, are in any event barred by the
bright line rule. [Bidna v. Rosen, supra, 19 CA4th at 35-38, 23 CR2d at 256-258 (citing text); Lossing v.
Super.Ct. (Mason) (1989) 207 CA3d 635, 636-639, 255 CR 18, 18-20; see also Begier v. Strom (1996) 46
CA4th 877, 886, 54 CR2d 158, 164, fn. 8]
[1:439] Not prevailing on an OSC re Contempt to enforce a prior court order in ongoing litigation
cannot be the basis for a malicious prosecution action against the moving partys attorney. [Lossing v.
Super.Ct. (Mason), supra, 207 CA3d at 636, 639, 255 CR at 18, 20]
[1:440] Nor will a malicious prosecution action lie against an attorney who brings an OSC re Contempt
to enforce an order in an underlying dissolution action and then has it withdrawn from the family law
calendar. [Green v. Uccelli, supra, 207 CA3d at 1121, 255 CR at 319]
In the bitter atmosphere of marriage dissolution proceedings, it is not unusual for the parties to delay
carrying out the courts orders; hence, it is not uncommon for contempt proceedings to be brought and
then dropped when a party subsequently complies.
Therefore, contempt proceedings should not be the basis for malicious prosecution suits, which could
produce a chilling effect upon access to the family law court to enforce orders and upon the vigorous
representation to which the client is entitled. [Green v. Uccelli, supra, 207 CA3d at 1121-1122, 255 CR
at 319-322appropriate remedy is request for sanctions in underlying action]
[1:440.1] Even egregious cases of successive bad faith family law motion or OSC proceedings
brought solely to coerce the opposing party into a desired result cannot give rise to a malicious
prosecution cause of action. The remedy is a sanctions award in connection with each discrete
proceeding, or a separate OSC for sanctions within a short time thereafter. [Bidna v. Rosen, supra, 19
CA4th at 38, 23 CR2d at 258H had no malicious prosecution remedy against W who (with financial
backing from her mother) brought 6 totally meritless ex parte applications and OSCs on custody matter
to coerce H into finally giving up custody of child]
[1:440.2] No malicious prosecution cause of action arises from an unsuccessful attorney
disqualification motion or an unsuccessful motion for reconsideration. They are simply subsidiary
procedural actions within an ongoing lawsuit, which are appropriately redressed by the courts broad
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

power to control judicial proceedings (sanctions, etc.). [Silver v. Gold (1989) 211 CA3d 17, 23-24, 259
CR 185, 188 (disqualification motion); Adams v. Super.Ct. (Vu) (1992) 2 CA4th 521, 528, 3 CR2d 49,
52 (reconsideration motion)]
[1:440.3] No malicious prosecution cause of action will lie against an attorney or his or her client based
on a request for an initial domestic violence restraining order, filed in the family law court, nor based on
subsequent requests for extensions, renewals and/or amendments of the initial restraining order.
[A] request for a domestic violence restraining order is a family law motion The fact the DVPA
authorizes restraining orders not only for the protection of persons traditionally considered family
members, but also persons who may not traditionally be considered family members, does not
preclude a request for a DVPA restraining order from constituting a family law motion within the
meaning of Bidna. [S.A. v. Maiden (2014) 229 CA4th 27, 37, 176 CR3d 567, 573 (emphasis in
original)]
[1:440.4] Reserved.
(3) [1:440.5] Applicationno malicious prosecution liability based on false child abuse allegations:
Injecting false child abuse allegations into a family law custody proceeding may draw sanctions in
addition to any other remedy provided by law (Fam.C. 3027.1; see 7:318.1 ff.). But that does not trump
Bidnas bright line prohibition.
False child abuse allegations made in a family law action cannot be met with malicious prosecution
liability because a malicious prosecution cause of action never has been an authorized remedy for abusive
family law proceedings. [Begier v. Strom (1996) 46 CA4th 877, 887-888, 54 CR2d 158, 165; see also Siam
v. Kizilbash (2005) 130 CA4th 1563, 1572-1574, 31 CR3d 368, 376-377no malicious prosecution action
based on unsuccessful CCP 527.6 civil harassment petition falsely charging child abuse]
[1:440.6 - 1:440.9] Reserved.
(4) [1:440.10] Same result despite inadequacy of family law remedies: Concededly, sanctions in the
underlying proceeding may not always provide the aggrieved party with a fully adequate remedy. For
example, a sanctions award cannot provide compensation for emotional distress; nor may it include
punitive damages. [Bidna v. Rosen, supra, 19 CA4th at 36, 23 CR2d at 257]
More significantly, a sanctions award provides no remedy as against a third party who, acting on behalf of
the opposing spouse, is the one actually responsible for waging the expensive campaign of attrition
against the aggrieved spouse. [See Bidna v. Rosen, supra, 19 CA4th at 36, 23 CR2d at 257Ws mother (a
non-spousal party) used her superior resources to finance Ws meritless custody motions/OSCs against H]
Nevertheless, despite the arguable inadequacy of family law remedies, we hold that no malicious
prosecution action may arise out of unsuccessful family law motions or OSCs. [Bidna v. Rosen, supra, 19
CA4th at 37, 23 CR2d at 257-258]
(5) [1:441] Compareordinary civil actions originating in family law proceedings: Occasionally, a
family law case operates as the vehicle to pursue a cause of action that really belongs on the civil side of
the superior court. The Bidna absolute bar does not apply to otherwise ordinary civil pleadings alleging
ordinary civil causes of action that, for whatever reason, originate in family law proceedings. [Nicholson
v. Fazeli (2003) 113 CA4th 1091, 1098-1099, 6 CR3d 881, 888none of Bidnas reasons for its absolute
bar apply to ordinary civil actions originating in family law proceedings]
[1:441.1] Trust was joined in dissolution action by parties stipulation and W filed a complaint against
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

Trust in the dissolution action seeking a constructive trust and declaratory relief. Thereafter, Trust filed a
cross-complaint seeking possession of personal property in Ws possession alleged to be trust property or
alternatively damages for loss of trust property.
Trust eventually voluntarily dismissed its cross-complaint. After an arbitrator found that the property
sought by the trust belonged to W, W filed a malicious prosecution action against H, the trustees and
trusts attorney, alleging the cross-complaint was maliciously prosecuted without probable cause. The
Bidna bright line rule did not bar the malicious prosecution cause of action:
The cross-complaint did not raise any family law issues. Although characterizing the property in
question as trust property might have had some impact on the parties CP division, Trust did not seek to
characterize the property as CP or SP but rather as trust property.
Had Trusts cross-complaint been separately filed in the superior court, there would be no question that
it could support a malicious prosecution action The mere fact that the cross-complainants used the
family law division case number and that the cross-complaint was filed in the family law division did not
transform the Trusts ordinary civil action against [W] into a family law motion, OSC or other inherently
family law proceeding. [Nicholson v. Fazeli, supra, 113 CA4th at 1098-1099, 6 CR3d at 888]
b. [1:442] Abuse of process: An abuse of process cause of action arises where court processes in a lawsuit
are utilized for an unauthorized purpose and with an ulterior motive to achieve a collateral advantage.
Abuse of process claims typically arise from improper or excessive attachments or improper use of discovery.
[Rusheen v. Cohen (2006) 37 C4th 1048, 1056-1057, 39 CR3d 516, 522; Bidna v. Rosen (1993) 19 CA4th 27,
40, 23 CR2d 251, 259-260; see Spellens v. Spellens (1957) 49 C2d 210, 229-233, 317 P2d 613, 624-627H
liable for abuse of process when he instituted claim and delivery action against W to coerce W into dropping
her action over validity of their marriage]
Unlike malicious prosecution, abuse of process may not rest on the alleged improper filing or maintenance of
a lawsuit; there must be evidence defendant committed some willful, unauthorized act in a lawsuit that goes
beyond the legitimate object of the process involved. [See Rusheen v. Cohen, supra; Oren Royal Oaks
Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 C3d 1157, 1168-1170, 232 CR 567,
574-575; see also S.A. v. Maiden (2014) 229 CA4th 27, 42-43, 176 CR3d 567, 577-578neither initiation
nor continued prosecution of allegedly meritless DVPA restraining order proceedings could support Hs
abuse of process cause of action]
No abuse of process cause of action lies absent allegations of misuse of the tools of litigation otherwise
available in the regular conduct of court proceedings. [See Bidna v. Rosen, supra, 19 CA4th at 40, 23 CR2d
at 260 (emphasis added; internal quotes omitted)complaint alleging only fact of multiple child custody
proceedings used to oppress H does not state abuse of process cause of action; Silver v. Gold (1989) 211
CA3d 17, 24-25, 259 CR 185, 189no abuse of process cause of action arising from filing motion to
disqualify counsel with improper motive; Palmer v. Zaklama (2003) 109 CA4th 1367, 1381, 1 CR3d 116,
126no abuse of process cause of action based on improper recordation of lis pendens]
c. [1:443] Infliction of emotional distress: Conceivably, there may be cases where particularly egregious
conduct in a family law proceeding could give rise to a cause of action for intentional or negligent infliction
of emotional distress (which may fill the gap left by an inadequate sanctions remedy, 1:441).
However, intentional infliction claims are difficult to prove (the conduct in question must be so extreme
as to exceed all bounds of that usually tolerated in a civilized community;
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

(1979) 24 C3d 579, 593, 156 CR 198, 206).

Even though the bad faith initiation of meritless OSCs and motions may give rise to severe emotional
distress, that conduct in an ongoing family law case does not involve any action outside of ordinary court
proceedings calculated to humiliate or inflict emotional distress and thus will not support an intentional
infliction cause of action. [Bidna v. Rosen, supra, 19 CA4th at 39, 23 CR2d at 259]
A fortiori, where an intentional infliction claim will not lie, it is unlikely the aggrieved party will be able to
state a cause of action for negligent infliction of emotional distress (which is not an independent tort but,
rather, requires the usual showing of duty, breach and causation in addition to severe emotional distress).
[See Bidna v. Rosen, supra, 19 CA4th at 39, 23 CR2d at 259]
d. [1:444] Attorney-client civil conspiracy: Attorneys are expected to stay within the bounds of law in
representing their clients and advising about an appropriate course of action (see 1:192 ff.). Counsel who
circumvent established legal channels to accomplish a desired result, participating with the client in a scheme
to dispossess the other spouse of his or her claimed property or possessory rights, are not performing the
normal services of an attorney.
Conduct of this sort exposes counsel to a host of tort claimsincluding a cause of action for attorney-client
conspiracy. [See Rickley v. Goodfriend (2013) 212 CA4th 1136, 1154, 151 CR3d 683, 700 (citing text);
Burtscher v. Burtscher (1994) 26 CA4th 720, 727, 31 CR2d 682, 686]
[1:444.1] Such was the case where, following a dispute over possessory rights to the family residence (W
had originally been given a contractual right of exclusive possession), Attorney for H accompanied Hs
new spouse to the residence to retake possession from W in her absence (by ousting Ws guest, changing
the locks, removing Ws personal belongings, etc.). These facts established a prima facie case of
attorney-client conspiracy sufficient to satisfy CC 1714.10 (requiring leave of court to plead claim
against attorney for civil conspiracy with client based on attorneys representation of client). [Burtscher v.
Burtscher, supra, 26 CA4th at 727, 31 CR2d at 686]
We can perceive of situations where it may be difficult to distinguish between when a lawyer is
representing a client and when he or she is an integral part of a conspiracy to defraud a third person, but
that is not our case. In our case, attorney resorted to self-help in going onto the property and
unilaterally retaking possession in circumstances where a lawyer would be serving a notice to quit, filing
an unlawful detainer action and getting a court order. [Attorney] actively participated in conduct that went
way beyond the role of legal representative: self-help is not the practice of law [Burtscher v. Burtscher,
supra]
e. [1:445] Litigation privilege defense (CC 47(b)): Though not intended as a license to engage in
tortious misconduct, the statutory litigation privilege (CC 47(b)) provides absolute immunity for
publications or broadcasts made in the course of a judicial proceeding or other official proceeding
authorized by law. [CC 47(b); Silberg v. Anderson (1990) 50 C3d 205, 215-216, 266 CR 638, 644-645;
see also Holland v. Jones (2012) 210 CA4th 378, 382, 148 CR3d 550, 553Ws allegedly false and
malicious statements in disso action pleadings fall squarely within litigation privilege (1:446.1, 1:468)]
The underlying purpose of the privilege is to (1) afford litigants and witnesses the utmost freedom of
access to courts without fear of being harassed subsequently by derivative tort actions, (2) promote the
effectiveness of judicial proceedings by encouraging open channels of communication and the presentation
of evidence, (3) encourage attorneys to zealously protect their clients interests, and (4) enhance the
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

finality of judgments and avoid an unending roundelay of litigation.

[Silberg v. Anderson, supra, 50 C3d at 213-214, 266 CR at 642-643; Flatley v. Mauro (2006) 39 C4th 299,
321-322, 46 CR3d 606, 623; see also Wise v. Thrifty Payless, Inc. (2000) 83 CA4th 1296, 1302, 100 CR2d
437, 442Any other rule would surely spawn a second layer of litigation between a former spouse or a
spouse currently seeking a dissolution whose goal it is to make his or her former partners life miserable]
(1) [1:446] Torts subject to privilege: The litigation privilege extends to all tort actions predicated on a
privileged communication except malicious prosecution. [Hagberg v. California Fedl Bank FSB (2004) 32
C4th 350, 360, 7 CR3d 803, 808; see also Rubin v. Green (1993) 4 C4th 1187, 1194, 17 CR2d 828,
831but for malicious prosecution, 47(b) privilege has an expansive reach]
CC 47(b) thus provides a defense to defamation, infliction of emotional distress, invasion of privacy,
abuse of process, interference with prospective economic advantage/contractual relations, fraud,
negligence, false imprisonment, wrongful attorney solicitation, etc. [See Silberg v. Anderson, supra, 50
C3d at 215-216, 266 CR at 644-645; Hagberg v. California Fedl Bank FSB, supra, 32 C4th at 375, 7
CR3d at 821 (false imprisonment); Rubin v. Green, supra, 4 C4th at 1203-1204, 17 CR2d at 837-838
(wrongful client solicitation suit; 1:466)]
[1:446.1] CC 47(b) barred Hs libel claim against W for allegedly making false and malicious
statements in a declaration filed in their dissolution proceeding. [Holland v. Jones (2012) 210 CA4th
378, 382, 148 CR3d 550, 553]
[1:446.2] CC 47(b) barred Hs intentional infliction of emotional distress cause of action based on a
false child abuse accusation asserted by W in their dissolution action. [Begier v. Strom (1996) 46 CA4th
877, 882, 54 CR2d 158, 161; see also S.A. v. Maiden (2014) 229 CA4th 27, 43, 176 CR3d 567, 578CC
47(b) barred Hs intentional infliction of emotional distress cause of action based on allegedly
meritless DVPA restraining order proceedings initiated and maintained against him by Ws attorney]
[1:446.3] CC 47(b) barred Ws invasion of privacy claim against H arising out of their dissolution
action. [Wise v. Thrifty Payless, Inc., supra, 83 CA4th at 1302, 100 CR2d at 441-442 (discussed at
1:460.5); see also Jacob B. v. County of Shasta (2007) 40 C4th 948, 961, 56 CR3d 477, 487privilege
applies even to constitutionally-based privacy causes of action (suit against county for publishing letter
containing child molestation accusations in family law proceeding where plaintiffs visitation rights were
being litigated; 1:465.1)]
[1:446.4] CC 47(b) barred Ws postdissolution fraud and negligent misrepresentation action based on
Hs concealment of community property. [Rubenstein v. Rubenstein (2000) 81 CA4th 1131, 1147, 97
CR2d 707, 718]
[1:446.5] CC 47(b) barred Hs postdissolution suit for fraud predicated on his court-appointed
guardian ad litems fee application. [See McClintock v. West (2013) 219 CA4th 540, 553-554, 162 CR3d
61, 71-72 (discussed further at 1:460.9)]
[1:447] Reserved.
(2) [1:448] Requirementsin general: Even fraudulent and malicious communications are absolutely
privileged provided they are (a) required or permitted by law, (b) made in a judicial or quasi-judicial
proceeding (not necessarily in the courthouse, see 1:451 ff.) or any other official proceeding authorized
by law, (c) by litigants or other participants authorized by law, (d) to achieve the objects of the litigation,
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

and (e) having some connection or logical relation to the action. [Silberg v. Anderson, supra, 50 C3d at
212, 216-217, 266 CR at 642, 645-646; Jacob B. v. County of Shasta, supra, 40 C4th at 955, 56 CR3d at
482]
There is no requirement that the communication have been made in the interest of justice; and, so long as
logically connected to the litigation, it is absolutely privileged notwithstanding alleged evil motives.
[Silberg v. Anderson, supra, 50 C3d at 218-220, 266 CR at 646-647]
Moreover, communications are permitted by law within the meaning of the privilege so long as they are
in a category of publications permitted by laweven if the specific publication is not permitted by law
(e.g., perjurious testimony!). [Jacob B. v. County of Shasta, supra, 40 C4th at 958-959, 56 CR3d at 485; see
GeneThera, Inc. v. Troy & Gould Prof. Corp. (2009) 171 CA4th 901, 909, 90 CR3d 218, 224settlement
letter to opposing counsel falls within category of communications to which 47(b) privilege attaches even
if intended to precipitate conflict of interest and substantively at variance with the Rules of Professional
Conduct]
(a) [1:449] Liberally construed and applied: The above requirements are liberally construed. Any
doubt as to whether the privilege applies is resolved in favor of applying it. [Ramalingam v. Thompson
(2007) 151 CA4th 491, 500, 60 CR3d 11, 18; Obos v. Scripps Psychological Assocs., Inc. (1997) 59
CA4th 103, 108, 69 CR2d 30, 32]
(b) [1:450] Parties or nonparties: Provided it is connected with a judicial proceeding, a communication
is privileged whether it relates to a party or nonparty, and whether it is made to a party or nonparty or by
a party or nonparty. [Obos v. Scripps Psychological Assocs., Inc., supra, 59 CA4th at 108, 69 CR2d at
32-33]
(3) [1:451] Application to prelawsuit communications: In its application to communications made in a
judicial proceeding, CC 47(b) is not limited to statements made in a courtroom. The privilege also
extends to certain statements preceding commencement of a lawsuit, whether in preparation for anticipated
litigation or to investigate the feasibility of filing suit. [See Hagberg v. California Fedl Bank FSB (2004)
32 C4th 350, 361, 7 CR3d 803, 809-810 (collecting cases)]
Likewise, the 47(b) privilege as applied to communications in a quasi-judicial proceeding or any other
official proceeding authorized by law also protects statements to or from governmental officials that are
preparatory to the initiation of formal proceedings. [See Hagberg v. California Fedl Bank FSB, supra, 32
C4th at 362-364, 7 CR3d at 810-812 (collecting cases); see also Wang v. Heck (2012) 203 CA4th 677, 684,
137 CR3d 332, 337-338doctors DMV evaluation form determining epileptic patient was safe to drive
constituted privileged communication, barring negligence claim against doctor after patient caused
seizure-related accident]
(a) [1:451.1] Good faith contemplation of judicial, quasi-judicial or other official proceeding
required: There are limits, however. Specifically, a prelitigation communication is privileged only when
it logically relates to litigation that is contemplated in good faith and under serious consideration.
[Action Apt. Assn, Inc. v. City of Santa Monica (2007) 41 C4th 1232, 1251, 63 CR3d 398, 414; Rohde v.
Wolf (2007) 154 CA4th 28, 36, 64 CR3d 348, 354; see also Rest.2d Torts 586, comm. e]
The classic example is an attorneys demand letter threatening a lawsuit if a claim is not settled.
[Edwards v. Centex Real Estate Corp. (1997) 53 CA4th 15, 35, 61 CR2d 518, 530, fn. 10]
[1:452] Reserved.
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

(b) [1:453] Attorney prelitigation advice: An attorneys conduct in counseling and advising his or her
clients preliminary to filing a lawsuit is clearly within the privilege even though the communications
might be regarded as wrongful client solicitation. [Rubin v. Green (1993) 4 C4th 1187, 1195, 17 CR2d
828, 832]
(c) [1:453.1] Reports of suspected criminal activity: Citizen communications to law enforcement (or
another governmental agency) reporting suspected criminal activity and urging an investigation and
response are protected by the 47(b) absolute privilege. A communication to an official agency designed
to prompt action is considered part of an official proceeding for purposes of CC 47(b). [Hagberg v.
California Fedl Bank FSB (2004) 32 C4th 350, 355, 364, 7 CR3d 803, 805, 812; Mulder v. Pilot Air
Freight (2004) 32 C4th 384, 387, 7 CR3d 828, 830]
(4) [1:454] Distinguishnot an evidentiary privilege: CC 47(b) operates purely as a bar to tort
liability. By contrast, CC 47(b) does not create an evidentiary privilege that protects a communication
from compelled disclosure. [Moore v. Conliffe (1994) 7 C4th 634, 638, 29 CR2d 152, 153, fn. 1]
(5) [1:455] Exampleslitigation privilege applied: As illustrated below, CC 47(b) immunity does not
turn on the identity of the person responsible for the tortious communication or the particular role he or she
played in the judicial proceeding. When the underlying requirements are satisfied (1:448, 1:451.1), the
privilege provides a liability shield for clients, attorneys and even third party experts and witnesses.
(a) [1:456] No attorney liability for recommending allegedly biased custody evaluator: The litigation
privilege barred Hs tort claims against Ws attorney who obtained Hs consent to have a particular,
supposedly unbiased, psychologist perform a custody evaluation and make recommendations to the
court without disclosing her (the attorneys) romantic involvement with the psychologist. (H charged
Ws attorney with procuring an inaccurate and unfairly prejudiced evaluation report that ultimately
estranged him from his children.)
The attorneys statements as to the psychologists neutrality were absolutely privileged because they (i)
occurred in the dissolution proceeding, (ii) were made by an authorized participant in the litigation, (iii)
were reasonably related to the action (custody/ visitation were in issue), and (iv) played an integral
role in the dissolution. That artifice and deceit were allegedly used to give the attorneys client the
upper hand did not defeat the privilege (no interest of justice requirement, 1:448). [Silberg v.
Anderson (1990) 50 C3d 205, 219-220, 266 CR 638, 647-648]

(b) [1:457] Jointly-retained expert not liable for improper investigation: CC 47(b) provides
neutral expert witnesses with an absolute privilege for their courtroom testimony and for their
preparatory activity leading up to that testimony. [Ramalingam v. Thompson (2007) 151 CA4th 491,
500-501, 504, 60 CR3d 11, 18, 21immaterial that neutral expert was not retained to resolve disputes or
make recommendations to court; Gootee v. Lightner (1990) 224 CA3d 587, 593, 274 CR 697, 700]
[1:457a] Psychologist hired jointly by H and W to make a custody evaluation and recommendation to
the court was not liable to H for professional malpractice predicated on his alleged negligent testing
of the parties and destruction of raw test data that H purportedly needed to challenge Psychologists
conclusions. (In partial reliance on Psychologists postevaluation testimony, the trial court awarded
custody to W.)

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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

The offending conduct occurred during and as part of the preparatory activities which were
directed toward and done in contemplation of testifying. Moreover, we can discern no injury other
than that which resulted from the testimonial process, and [H] had ample opportunity to attack the
negligently prepared expert opinion during the prior litigation, rather than seek compensation
through the unending roundelay of litigation condemned in Silberg. [Gootee v. Lightner, supra, 224
CA3d at 595, 274 CR at 701 (brackets added); see also Laborde v. Aronson (2001) 92 CA4th 459,
463-464, 112 CR2d 119, 122-123; compare Budwin v. American Psychological Assn (1994) 24
CA4th 875, 883-884, 29 CR2d 453, 459 47(b) does not preclude private professional association
from disciplining member psychologist for making false representations as neutral expert in child
custody case]
[1:457b] The CC 47(b) privilege barred Ws malpractice action against an accountant jointly
retained by H and W in their dissolution proceeding to determine the character and value of the
parties property. Both the accountants negligent investigation in preparing to testify at trial on the
property issues and the testimony itself were protected by the privilege. [Ramalingam v. Thompson,
supra, 151 CA4th at 504, 60 CR3d at 21]
[1:457.1] The CC 47(b) privilege barred a negligence action brought by parents against a
laboratory they jointly retained for the purpose of conducting DNA tests to determine their childs
paternity. The privilege protected both the erroneous test results and the fact the results were
communicated to the county as part of its ongoing paternity proceeding against the father. [See Falcon
v. Long Beach Genetics, Inc. (2014) 224 CA4th 1263, 1274-1275, 169 CR3d 497, 506-507 (noting
application of privilege does not require party or participant to initiate or be cognizant of pending or
contemplated litigation)]
(c) [1:457.2] No psychologist liability for disparaging remarks about nonparty in custody
proceeding: During a court-ordered investigation in a child custody dispute, Psychologist allegedly was
told Mothers Boyfriend had been dishonorably discharged from the military and fired from his job for
dishonesty. Psychologist discussed these allegations with the childrens attorney and their therapist.
Those communications were protected by the CC 47(b) privilege, barring Boyfriends suit for
defamation and invasion of privacy.
Boyfriends involvement with Mother indicated he would likely impact the childrens environment if
they lived with Mother. Thus, the communications clearly were connected or logically related to the
case, and achieved its objects: informing the childrens counsel and therapist of the allegations, and
inquiring as to their veracity, furthered the goal of ascertaining which custodial arrangement was in the
childrens best interests. [Obos v. Scripps Psychological Assocs., Inc. (1997) 59 CA4th 103, 107, 69
CR2d 30, 32]
(d) [1:458] No expert liability to opposing party for perjured testimony/falsified evidence: CC
47(b) fully protects adverse expert witnesses from civil liability for giving false testimony or predicating
their testimony on knowingly false assumptions or facts. As against the opposing party, the witness
testimony and evidence on which it is based are privileged publications. [Carden v. Getzoff (1987) 190
CA3d 907, 235 CR 698no abuse of process cause of action against expert accountant hired by W to
value Hs medical practice in dissolution action despite falsehoods in accountants report and knowingly
false valuation testimony]
Rationale: Otherwise, adverse witnesses, fearing subsequent civil suits, would be extremely hesitant or
unwilling to testify. [Carden v. Getzoff, supra, 190 CA3d at 915, 235 CR at 703]
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

1) [1:459] Comparefriendly witnesses: CC 47(b) does not protect an expert witness from
liability to the party who hired that witness. Unlike the adverse or jointly-retained neutral witness
situations (above), applying the privilege to friendly witnesses would not further the 47(b) policy
of affording litigants the utmost freedom of access to the courts by encouraging witnesses to testify
truthfully; indeed, by shielding a negligent [friendly] expert witness from liability, it has the opposite
effect. [See Mattco Forge, Inc. v. Arthur Young & Co. (1992) 5 CA4th 392, 404-406, 6 CR2d 781,
788-790 (brackets added); Lambert v. Carneghi (2008) 158 CA4th 1120, 1144, 70 CR3d 626, 645]
2) [1:460] Compareperjured property disclosure declarations: Notwithstanding the above, when
a support or property division judgment is predicated on a falsified (perjured) declaration of
disclosure (Fam.C. 2100 et seq.), the aggrieved party has a set-aside remedy pursuant to Fam.C.
2120 et seq. [See Fam.C. 2104(a), 2105(a), 2122(b); and detailed discussion at 16:100 ff.]
[1:460.1 - 1:460.4] Reserved.
(e) [1:460.5] No liability between spouses for wrongful disclosure of confidential medical
information in custody action: W had no cognizable invasion of privacy (or other tort) cause of action
against H who, during the parties dissolution, wrongfully used Ws confidential prescription drug
information in an attempt to persuade the court W was not deserving of child custody. CC 47(b)
absolutely protects litigants and other participants from being sued on the basis of communications they
make in the context of family law proceedings. [Wise v. Thrifty Payless, Inc. (2000) 83 CA4th 1296,
1302-1303, 100 CR2d 437, 441-442]
Likewise, CC 47(b) protected H from civil damages claims arising from his use of the confidential
medical information in communications with the DMV regarding Ws fitness to drive. The impact of
Ws alleged drug use on her ability to drive squarely falls within the privilege for quasi-judicial
proceedings. [Wise v. Thrifty Payless, Inc., supra, 83 CA4th at 1303, 100 CR2d at 442]
1) [1:460.6] Comparedisclosure by disinterested pharmacist: But the initial wrongful disclosure
by the pharmacist to H (after W had instructed pharmacist not to reveal her medical information to
anyone and, in particular, her husband) was not privileged. It was neither made in nor logically related
to a judicial or quasi-judicial proceeding (pharmacist gave the report to H for tax purposes). [Wise v.
Thrifty Payless, Inc., supra, 83 CA4th at 1304, 100 CR2d at 443]
(f) [1:460.7] No attorney liability for filing copy of opposing partys unredacted credit report in
postdissolution proceedings: The 47(b) privilege protected ex-Ws attorney from civil liability to
ex-H for improper use of ex-Hs consumer credit file and invasion of privacy; ex-Hs causes of action
were based on the attorneys filing of an unredacted copy of ex-Hs credit report in support of a
postdissolution motion to compel ex-H to pay after-discovered debts that had negatively impacted
ex-Ws credit status.
Application of the litigation privilege was not negated by the fact the Rules of Court require redaction of
personal identifiers from documents filed with the court (unless filed under seal) (CRC 1.20). [G.R. v.
Intelligator (2010) 185 CA4th 606, 616-619, 110 CR3d 559, 567-570]
(g) [1:460.8] No attorney liability for providing estate planning and probate services that assist
client in evading child support obligation: Attorneys who revised the estate plan of Hs mother to
disinherit H, and who subsequently participated in probate proceedings and the defense of other
litigation in which W attempted to enforce Hs child support liability, were absolutely protected by the
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

47(b) privilege against Ws civil suit alleging they unlawfully assisted in transferring an asset of H to
assist in evading his child support obligation. [Cabral v. Martins (2009) 177 CA4th 471, 488-489, 99
CR3d 394, 408-409 (rejecting argument that child support evasion statutes, CC 1714.4 & 1714.41,
create exception to CC 47(b))]
(h) [1:460.9] No guardian ad litem liability for submitting fee request in excess of stipulated
amount: The CC 47(b) privilege protected Hs guardian ad litem from civil liability for submitting a
postdissolution fee application that exceeded the agreed-upon amount. The guardians fee request, as
part of the divorce action, was plainly in the course of a judicial proceeding to achieve the objects of the
litigation [McClintock v. West (2013) 219 CA4th 540, 554, 162 CR3d 61, 71]
(6) [1:461] Limitationno privilege for noncommunicative tortious conduct: The litigation privilege
extends only to communications or communicative acts. It does not protect purely noncommunicative
tortious conduct. [Kimmel v. Goland (1990) 51 C3d 202, 212, 271 CR 191, 197]
(a) Examples
1) [1:462] Invasion of privacy suit predicated on illegal eavesdropping: CC 47(b) is plainly not
applicable to an invasion of privacy suit alleging injury from the unlawful taping of confidential
phone conversations, rather than from a publication or broadcast of the information contained in
those conversations. It is immaterial that the unlawful conduct was undertaken to obtain evidence in
anticipation of litigation. [Kimmel v. Goland, supra, 51 C3d at 209, 271 CR at 195attorney not
protected by litigation privilege for conduct in aiding and abetting violation of Calif. Invasion of
Privacy Act]
2) [1:462.1] Invasion of privacy suit based on unauthorized reading of confidential records:
Likewise, the litigation privilege provides no defense to an invasion of privacy suit predicated on the
unauthorized reading and dissemination of confidential mental health (or medical)
recordsnoncommunicative conduct. [Mansell v. Otto (2003) 108 CA4th 265, 272-276, 133 CR2d
276, 281-285 (collecting cases) (but suit barred because plaintiffs records had been released pursuant
to court order)]
(b) [1:463] Comparesuit based on communicative conduct: On the other hand, the 47(b) privilege
protects litigation-related conduct that is communicative in nature. [Rubin v. Green (1993) 4 C4th 1187,
1195-1196, 17 CR2d 828, 832-833; see Edwards v. Centex Real Estate Corp. (1997) 53 CA4th 15,
40-41, 61 CR2d 518, 534]
The distinction between communicative and noncommunicative conduct turns on the gravamen of the
actioni.e., the key in determining whether the privilege applies is whether the injury allegedly
resulted from an act that was communicative in its essential nature. [Rusheen v. Cohen (2006) 37 C4th
1048, 1058, 39 CR3d 516, 523 (collecting cases); Ramalingam v. Thompson (2007) 151 CA4th 491, 503,
60 CR3d 11, 20; see also Falcon v. Long Beach Genetics, Inc. (2014) 224 CA4th 1263, 1273, 169 CR3d
497, 505privilege protects noncommunicative acts necessarily related to communicative conduct and
applies except where independent, noncommunicative, wrongful act constitutes gravamen of the
action]
[1:463.1 - 1:463.4] Reserved.
[1:463.5] The filing of a legal action is by its nature a protected communicative act. [Action Apt.
Assn, Inc. v. City of Santa Monica (2007) 41 C4th 1232, 1249, 63 CR3d 398, 412-413]
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

[1:464] Section 47(b) provides absolute civil immunity in suits based on testifying to information
obtained through eavesdropping because in such case (unlike a suit based on the act of
eavesdropping), injury is alleged to have resulted from a communicative act in a judicial proceeding.
[See Ribas v. Clark (1985) 38 C3d 355, 365, 212 CR 143, 149privilege applied to testimony of Ws
friend who eavesdropped on postdissolution phone conversation between H and W]
[1:465] Similarly, the litigation privilege is clearly operative in an invasion of privacy suit resting
on an attorneys alleged communicative acts of counseling and advising his or her client to engage
in illegal eavesdropping. [See Kimmel v. Goland, supra, 51 C3d at 208, 271 CR at 194, fn. 6 (dictum)]
[1:465.1] The privilege barred an invasion of privacy cause of action against County alleging it had
wrongly disclosed in a letter to a family law judge that a person considered for child visitation had
previously molested his nephew. The gravamen of the action was not Countys noncommunicative
conduct in accessing the underlying data and disclosing it to the victims mother but, rather,
publication of the information in a judicial proceeding. [Jacob B. v. County of Shasta (2007) 40 C4th
948, 957, 56 CR3d 477, 484]
[1:466] And the privilege defeated a wrongful client solicitation suit (including a claim for
injunctive relief) against an attorney based on the attorneys actions in meeting with prospective
clients about a proposed lawsuit and filing subsequent pleadings. [W]e can imagine few
communicative acts more clearly within the scope of the privilege. [Rubin v. Green, supra, 4 C4th at
1195-1196, 17 CR2d at 832-833]
[1:466.1 - 1:466.4] Reserved.
(c) [1:466.5] Comparesuit based on noncommunicative conduct necessarily related to
privileged communication: Where the gravamen of a tort cause of action is communicative, the
litigation privilege also extends to noncommunicative acts that are necessarily related to the privileged
communication. [Jacob B. v. County of Shasta, supra, 40 C4th at 957, 56 CR3d at 484; Rusheen v.
Cohen (2006) 37 C4th 1048, 1065, 39 CR3d 516, 529; see Ramalingam v. Thompson, supra, 151 CA4th
at 503, 60 CR3d at 20 (discussed at 1:457b)]
(7) Other exceptions and limitations
(a) [1:467] Republications and communications to or by disinterested third parties: The CC 47(b)
litigation privilege does not protect republications to nonparticipants in the judicial proceeding (e.g.,
news reports; but see 1:467.1 re CC 47(d) privilege). [Silberg v. Anderson (1990) 50 C3d 205, 219,
266 CR 638, 647; see also Rickley v. Goodfriend (2013) 212 CA4th 1136, 1163, 151 CR3d 683, 707;
Cole v. Patricia A. Meyer & Assocs., APC (2012) 206 CA4th 1095, 1121-1122, 142 CR3d 646,
667-668uploading complaint on law firms Web site not privileged under CC 47(b)]
Nor does the 47(b) privilege shield original publications made to or by persons who have no
connection with the judicial (or quasi-judicial) proceeding. [Schoendorf v. U.D. Registry, Inc. (2002) 97
CA4th 227, 243, 118 CR2d 313, 324 (citing text)nonparticipants and nonlitigants to judicial
proceedings are never protected under 47(b); see Begier v. Strom (1996) 46 CA4th 877, 882-883, 54
CR2d 158, 161-162filing police report falsely alleging child abuse not protected because neither
police nor report were connected with pending disso action]

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1) [1:467.1] Comparefair and true report in, or communication to, public journal (CC
47(d) privilege): CC 47(d) separately protects fair and true reports in, or communications to, a
public journal (newspaper, etc.) of a judicial, legislative or other public official proceeding, or of
anything said in the course of such proceeding. [CC 47(d)]
The purpose of the privilege is to ensure the public interest is served by the dissemination of
information about events occurring in official proceedings and with respect to verified charges or
complaints resulting in the issuance of a warrant. [Burrill v. Nair (2013) 217 CA4th 357, 398, 158
CR3d 332, 362]
Precise, verbatim reporting of what occurred is not required. A publication is fair and true for
47(d) purposes so long as its substance, gist or sting accurately reports the proceeding. [See
Sipple v. Foundation for National Progress (1999) 71 CA4th 226, 242, 244, 83 CR2d 677, 686, 688]
This is an absolute privilege, liberally applied to protect the media. [Sipple v. Foundation for National
Progress, supra, 71 CA4th at 240-242, 83 CR2d at 685-686]
It applies regardless of whether the publication was made with malice or in bad faith and even if it
is a paid for public announcement as opposed to an unpaid news story. [Microsoft Corp. v. Yokohama
Telecom Corp. (CD CA 1998) 993 F.Supp. 782, 784-785 (applying Calif. law)paid newspaper
announcement of lawsuits allegations absolutely privileged]
a) Exceptions
[1:467.1a] The 47(d) privilege does not extend to communications that (i) violate CRPC 5-120
(regulating trial publicity); (ii) breach a court order; or (iii) violate confidentiality requirements
imposed by law. [CC 47(d)(2)]
[1:467.1b] The 47(d) privilege also does not protect a report of the charges made in a
citizens criminal complaint, made by the citizen who filed that complaint, when there is no
evidence any official action has been taken with respect to the complaint. [See Burrill v. Nair,
supra, 217 CA4th at 398, 158 CR3d at 363 (declining to hold privilege applicable to defamatory
statements made by plaintiff in radio interview)]
[1:467.2] PRACTICE POINTER: Neither CC 47(b) nor CC 47(d) protects outright litigating
in the press. [Rothman v. Jackson (1996) 49 CA4th 1134, 1149, 57 CR2d 284, 294] Thus, while
lawyers in high-profile cases may want to use the media to vindicate their clients in the public
opinion forum, bear in mind that doing so may risk liability for damaging, false, unprivileged
statements.
[1:467.3 - 1:467.4] Reserved.
(b) [1:467.5] Filing false report of child abuse (Pen.C. 11172(a) preemption): The Child Abuse and
Neglect Reporting Act (Pen.C. 11164 et seq.) requires physicians, psychotherapists and other specified
child care personnel to report known or suspected child abuse or neglect to local police and juvenile
authorities, and grants these mandated reporters absolute immunity from liability for making such
reports (see 11:159, 11:165).
But the Act also provides that other persons who are not statutorily obligated to report suspected child
abuse or neglect and who make a report of child abuse or neglect known to be false or with reckless
disregard of the truth or falsity thereof are liable for any damages caused (Pen.C. 11172(a)
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I.Liability Concerns in Handling Clients Case, Cal. Prac. Guide Family L. Ch. 1-I

(emphasis added)).
The liability imposed by Pen.C. 11172(a) creates a limited exception to (and to that extent preempts)
the CC 47(b) privilege; to hold otherwise would essentially nullify the Legislatures determination
under 11172(a) that liability should attach. [Begier v. Strom (1996) 46 CA4th 877, 884-885, 54 CR2d
158, 162-163; Siam v. Kizilbash (2005) 130 CA4th 1563, 1577-1578, 31 CR3d 368, 379-381; but see
also Chabak v. Monroy (2007) 154 CA4th 1502, 1519, 65 CR3d 641, 654 11172(a) liability
inapplicable to victim of child abuse/neglect and, thus, report by purported victim is absolutely privileged
under CC 47(b)]
(c) [1:468] Certain pleadings in dissolution/legal separation actions: Allegations in pleadings or
affidavits filed in a dissolution or legal separation action concerning a person by or against whom no
affirmative relief is sought are not privileged under 47(b) unless the allegations are (i) verified or
sworn under penalty of perjury, (ii) made without malice, by one having reasonable and probable cause
for believing the[ir] truth, and (iii) material and relevant to the issues in the action. [CC 47(b)(1);
compare Holland v. Jones (2012) 210 CA4th 378, 382, 148 CR3d 550, 553exception inapplicable to
Ws allegedly false and malicious statements against H in disso action pleadings because
communications were made against very person from whom [W] was seeking relief]
(d) [1:469] Communications in furtherance of destruction/alteration of evidence: The 47(b)
privilege does not protect communications made to further an intentional destruction or alteration of
physical evidence for the purpose of depriving a party of its use in litigation whether or not the
content of the communication is the subject of a subsequent publication or broadcast that is otherwise
privileged. [CC 47(b)(2); see Laborde v. Aronson (2001) 92 CA4th 459, 464, 112 CR2d 119,
123exception inapplicable where alteration of evidence does not deprive party of its use]
(e) [1:469.1] Communication concealing insurance policy: Section 47(b) does not make privileged
any communication made in a judicial proceeding knowingly concealing the existence of an insurance
policy. [CC 47(b)(3)]
(f) [1:470] Wrongful lis pendens: A recorded lis pendens is not privileged under 47(b) unless it
identifies an action previously filed with a court of competent jurisdiction which affects the title or right
of possession of real property, as authorized or required by law (see CCP 405 et seq.). [CC 47(b)(4);
Palmer v. Zaklama (2003) 109 CA4th 1367, 1379-1380, 1 CR3d 116, 125-126]
(g) [1:470.1] Violations of state and federal Fair Debt Collection Practices Acts (FDCPA): The
privilege does not apply to lawsuits predicated on express violations of the state and federal FDCPAs.
This is so because both Acts are more specific than the privilege and would be significantly or wholly
inoperable if the privilege applied. [See People v. Persolve, LLC (2013) 218 CA4th 1267, 1275-1277,
160 CR3d 841, 847-849]
(h) [1:470.2] Attorney-client conspiracy claims: Section 47(b) will not bar a civil conspiracy claim
against an attorney who acts jointly with his or her client for the purpose of interfering with a court
judgment. [See Rickley v. Goodfriend (2013) 212 CA4th 1136, 1148, 1163, 151 CR3d 683, 695, 707]
(8) [1:471] Compareother remedies: CC 47(b) extends no further than to bar tort actions based on a
privileged communication. Other remedies exist to help deter injurious conduct during litigation
including, where appropriate, sanctions (see 1:485 ff.), professional discipline (e.g., by the State Bar or
other applicable professional association), or criminal prosecution for perjury or subornation of perjury.
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[See Silberg v. Anderson (1990) 50 C3d 205, 218-219, 266 CR 638, 647; G.R. v. Intelligator (2010) 185
CA4th 606, 618, 110 CR3d 559, 568; see also Rusheen v. Cohen (2006) 37 C4th 1048, 1064-1065, 39
CR3d 516, 528 (noting alternative remedies mitigating denial of abuse of process claim)]
[1:472 - 1:474] Reserved.
f. [1:475] Quasi-judicial immunity defense: Liability for tortious conduct in litigation also may be defeated
by the common law doctrine of quasi-judicial immunity. That doctrine extends absolute judicial
immunity to persons who, though not judges, are acting in a judicial or quasi-judicial capacity.
[McClintock v. West (2013) 219 CA4th 540, 550, 162 CR3d 61, 69; Howard v. Drapkin (1990) 222 CA3d
843, 853-854, 271 CR 893, 897-898; Greene v. Zank (1984) 158 CA3d 497, 508, 204 CR 770, 777]
Unlike the CC 47(b) privilege (above), quasi-judicial immunity protects both communications and conduct.
[See Howard v. Drapkin, supra, 222 CA3d at 850, 271 CR at 896, fn. 2]
(1) [1:476] Public officials and court appointees: Quasi-judicial immunity has long been extended to
public officials and court-appointed persons performing acts of an adjudicatory or decisionmaking nature
(including grand jurors, prosecutors and State Bar officials). [See Howard v. Drapkin, supra, 222 CA3d at
853, 271 CR at 898 (collecting cases); see also McClintock v. West, supra, 219 CA4th at 549-550, 162
CR3d at 68-69quasi-judicial immunity extended to Hs court-appointed guardian ad litem who acted not
as advocate but as officer and representative of the court]
(2) [1:477] Other neutral third persons: There is also authority extending such immunity to
nonappointed neutral third persons who perform the functions normally performed by judges and are
an integral part of the judicial processincluding independent psychologists and other experts stipulated
to by the parties to make an evaluation and report findings to the judge. [Howard v. Drapkin, supra, 222
CA3d at 860, 271 CR at 903]
(a) [1:478] Exampleneutral psychologist acting as custody evaluator: In Howard, H and W had
stipulated to the retention of Psychologist for a custody evaluation in a case involving child abuse
allegations. W subsequently charged in various tort claims that Psychologist (i) verbally attacked W in
order to dissuade her from trying to take custody away from H; (ii) failed to disclose her (Psychologists)
lack of expertise in the area of child and sexual abuse, as well as her prior professional relationship with
H and her personal friendship with the wife of a partner in the law firm representing H; and (iii) omitted
material information in her written report. [Howard v. Drapkin, supra, 222 CA3d at 849-850, 271 CR at
895-896] Ws tort claims were held defeated by both CC 47(b) and quasi-judicial immunity:
[A]bsolute quasi-judicial immunity is properly extended to these neutral third parties for their conduct
in performing dispute resolution services which are connected to the judicial process and involve either
(1) the making of binding decisions, (2) the making of findings or recommendations to the court or (3)
the arbitration, mediation, conciliation, evaluation or other similar resolution of pending disputes.
As the defendant was clearly engaged in this latter activity, she is entitled to the protection of such
quasi-judicial immunity. [Howard v. Drapkin, supra, 222 CA3d at 860, 271 CR at 903; see also
Bergeron v. Boyd (2014) 223 CA4th 877, 886-889, 167 CR3d 426, 432-434 (citing Howard with
approval)absolute quasi-judicial immunity extended to neutral evaluator who issued interim custody
orders restricting Ms access to children (all actions complained of were well within evaluators
judicially-delegated role regardless whether legally authorized and absent any objection)]
(b) [1:479] Comment: As expanded by Howard, the doctrine of quasi-judicial immunity has
far-reaching implications. E.g., it would appear clearly to immunize pro bono lawyers acting as
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settlement officers and in-court mediators under local court and county bar association
settlement/mediation programs.
Even more significantly, the majoritys reasoning conceivably could be stretched to create immunity for
tortious conduct perpetrated by any third person jointly hired by the parties in dissolution proceedings
(not only custody evaluators but, arguably, appraisers, accountants, vocational counselors, etc.).
Whether future cases will agree remains to be decided. [Cf. Gootee v. Lightner (1990) 224 CA3d 587,
590, 274 CR 697, 698, fn. 2citing Howard but, finding that litigation privilege applied, declining to
reach quasi-judicial immunity issue; compare Susan A. v. County of Sonoma (1991) 2 CA4th 88, 98, 3
CR2d 27, 34psychologist retained by and speaking as advocate for defense (not as neutral third
party) in making statements to press, not entitled to quasi-judicial immunity]
[1:480] Reserved.
[1:481] PRACTICE POINTER: Pending further legislative action in this area, those arguing against
Howards expansion of the doctrine should consult Justice Danielsons concurring and dissenting
opinion in that case. He strongly attacked the majoritys creation, by judicial legislation, of a
quasi-judicial immunity in persons whom it vaguely designates as neutral third party participants in
the judicial process.
He urges that such extended immunity be left to the Legislature and thus would have disposed of the
case strictly on the basis of the litigation privilege, which standing alone, fully supports the result
reached. [See J. Danielson concur. and dissent.opn. in Howard v. Drapkin, supra, 222 CA3d at 864-868,
271 CR at 906-908]
[1:482 - 1:484] Reserved.
3. [1:485] Sanctions Exposure for Bad Faith/Uncooperative Litigation Tactics: Unwarranted litigation
and litigation tactics (meritless motions/OSCs, etc.), although falling short of an actionable tort, are remediable
by the imposition of monetary sanctions. Indeed, as indicated earlier, sanctions are essentially the exclusive
remedy to redress meritless or frivolous motions and other subsidiary proceedings in an ongoing action
(1:436 ff.). [See generally, Bidna v. Rosen (1993) 19 CA4th 27, 37-38, 23 CR2d 251, 257-258; Green v.
Uccelli (1989) 207 CA3d 1112, 1123, 255 CR 315, 320-321]
[1:486] Reserved.
a. [1:487] Statutory and CRC authority: California state courts have no inherent power to assess monetary
sanctions. [Olmstead v. Arthur J. Gallagher & Co. (2004) 32 C4th 804, 809, 11 CR3d 298, 301; Bauguess v.
Paine (1978) 22 C3d 626, 638, 150 CR 461, 468] However, statutes and Rules of Court authorize exercise of
the sanctions power, some of which are particularly potent weapons in family law litigation. Briefly:
(1) [1:488] Fam.C. 271: Uniquely and exclusively applicable in family law actions, Fam.C. 271
empowers trial courts to order a party to pay attorney fees and costs as a sanction where the partys or his
or her attorneys conduct frustrates the policy of the law to promote settlement of litigation and, where
possible, reduce the cost of litigation by encouraging cooperation between the parties and attorneys.
[Fam.C. 271(a)]
Fam.C. 271 gives family law judges broad-based discretion to invoke their sanctions power as a means of
curbing any harassing, unwarranted or dilatory litigation actions or tactics when they occur and, to that
extent, may provide a more effective remedy than is now available in general civil litigation (see CCP
128.7, below). In an appropriate case, 271 sanctions may be assessed in addition to a need-based
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