What is Litigation Privilege in California?
People often ask whether the existence of a lawsuit can be the basis for a damages claim for defamation or harm to reputation, but litigation privilege would actually prevent you from pursuing defamation litigation.
What is Litigation Privilege in California?
In California, litigation privilege is a law designed to afford broad protection to parties, attorneys, witnesses, and others participating in judicial or quasi-judicial proceedings. It is codified in California Civil Code Section 47(b).
While many states have various forms of litigation privilege, California is known for its broad and nearly absolute litigation privilege law.
What is an Example of Litigation Privilege in California?
Let’s discuss a hypothetical litigation privilege scenario.
If you are in California and someone files a lawsuit against you claiming that you stole from them, that could easily harm your reputation. After all, it would be public record. You may wonder if you have any recourse under California law in this situation.
You may wonder if you could put him through defamation litigation in response to damage caused to you by his accusations if his accusations were false.
If someone sued you claiming that you stole from them and you didn’t, you could not turn around file a defamation lawsuit against him in California. Your only recourse would be to defend yourself during the course of that lawsuit.
In California, you couldn’t sue him for defamation based on claims he made against you in a lawsuit because of the litigation privilege clause in the California Civil Code.
Despite the emotional and financial burden his claim would place upon you, your only recourse would be to file an answer defending yourself in response to his complaint.
Your response would also be a matter of public record. The judge would find that the claims in the complaint filed against you were not correct and you would win. Defending yourself and appearing in court with a strong civil litigation attorney would be your only recourse.
Litigation Privilege in California Grants Nearly Absolute Immunity
Litigation privilege in California law gives nearly absolute immunity from all liability for anything said as part of a court proceeding. Almost anything said in connection with a judicial proceeding is protected from defamation litigation.
The litigation privilege is not limited to civil proceedings either. In 2019, the California Court of Appeal upheld litigation privilege regarding a criminal trial involving extortion.
Which Communications Are Protected from Defamation Litigation?
Litigation privilege in California protects people’s speech from defamation litigation in all court-related communications including:
- In-court testimony
- Legal pleadings and documents filed in court (such as complaints, motions, and affidavits)
- Statements made during depositions or other pre-trial proceedings
- Communications in connection with litigation (such as letters and emails between attorneys and their clients)
How Litigation Privilege in California Could Benefit You
This litigation privilege in California could also benefit you in a lawsuit. Your comments are protected by litigation privilege too.
Litigation privilege in California means that if you reasonably believe that someone committed an improper act, you are also free to say as much in a filed pleading, declaration, or in-court testimony without the fear of being sued for defamation.
You would be entirely protected from enduring defamation litigation for those words as long as they are related to the case.
Remember, the litigation privilege in California goes both ways. Litigation privilege in California also means that the other side in a case can make such claims about you during litigation and be protected against a defamation lawsuit.
Why Litigation Privilege Limits Recovery for Defamation
Under litigation privilege, statements made in the course of a judicial proceeding are generally immune from defamation litigation, even if they are false or malicious. This protection applies as long as the statements are related to the case.
The rationale behind this privilege is to encourage open and vigorous participation in legal proceedings. The courts recognize that if participants feared being sued and faced with defamation litigation, they might be hesitant to fully speak or disclose information.
Obviously, withholding information could hinder the discovery of truth and challenge the effective administration of justice.
Other Purposes of Litigation Privilege in California
The primary purpose of the litigation privilege in California is to ensure that participants in all legal proceedings are free to speak and communicate without the fear of being sued for defamation.
Litigation privilege in California actually serves several functions besides just encouraging truthful testimony. It also serves to:
- Avoid unending litigation
- Promote judicial efficiency
- Encourage advocacy
- Provide witness protection from derivative tort actions
Again, this protection covers statements made in a variety of contexts related to litigation, even if the comments are made outside the courtroom.
Now, if they were to make the same claim about you later outside of court proceedings once the lawsuit is over such as in a press conference or on social media, those statements would not be protected by litigation privilege, and you could be free to pursue defamation litigation at that point.
Is Litigation Privilege in California Fair?
Even if someone says something about you that isn’t true in the course of a lawsuit, those statements would typically be protected under litigation privilege.
It should be noted though that perjury is still a criminal offense, but do you plan to file a police report against the person committing perjury? Do you have proof that the person was knowingly committing perjury? These are factors to consider.
Even the California Supreme Court recognizes that this law “necessarily results in some real injuries that go uncompensated,” but also recognizes “that is the price that is paid for witnesses who are free from intimidation” and the defamation litigation that would otherwise result from their candid remarks.
So, while it may seem unfair that a person is protected by litigation privilege in California even if they say something that is not true, most law experts understand the necessity of litigation privilege.
Exceptions and Limitations to Litigation Privilege in California
While litigation privilege in California offers wide-ranging protection, it’s not absolute in all situations. There are certain exceptions and limitations. Consider the following potential limitations to litigation privilege carefully:
- The privilege does not extend to crimes or acts of fraud that are not related to the judicial proceedings.
- Statements that are not pertinent or relevant to the litigation might not be covered under litigation privilege in California.
Determining whether a particular statement falls within the scope of litigation privilege in California can be complex and often depends on the specific circumstances of the case.
Given these nuances, it’s important for you to discuss your specific situation with a legal professional with a deep understanding of litigation privilege in California. An experienced civil litigation attorney can provide tailored advice on whether litigation privilege applies to your case.
They can also explore any potential avenues for addressing the false statements outside of a defamation claim.
Do You Need a Defamation Litigation Attorney?
Litigation privilege in California can be both a useful tool and a commonsense approach to judicial efficiency, but as with most well-intended laws, some people will always try to take advantage of it or use the law to gain a malicious advantage.
Although this legislative privilege exists irrespective of the person’s intent, it’s an incredibly complex law and any scenario involving litigation privilege should be thoroughly examined by a defamation litigation attorney experienced in handling litigation privilege scenarios.
If you need a defamation litigation attorney in California or Texas, an experienced litigation attorney at LloydWinter, P.C. may be able to help.