holding that the litigation privilege, which is codified as a separate subsection of the same statute as the common interest privilege, applies to claims for invasion of privacy, even where such claims are brought under the California constitution
How later courts described this case
- holding that the litigation privilege, which is codified as a separate subsection of the same statute as the common interest privilege, applies to claims for invasion of privacy, even where such claims are brought under the California constitution
- finding Section 8 47(b) applicable to privacy causes of action regardless of whether they are labeled under common 9 law, statute, or Constitutional law
- stating that 18 the litigation “privilege extends even to civil actions based on perjury”
Written by the judges who cited it.
The opinion
*963 KENNARD, J., Concurring.
I join the majority’s holding on the scope of the litigation privilege set out in Civil Code section 47, subdivision (b). Specifically, I agree that the litigation privilege, which applies to communications made in connection with any “judicial proceeding,” applies here to a letter that the supervisor of Shasta County’s victim witness program wrote to a Tehama County Superior Court judge who was to decide whether to allow contact between three children and their stepfather’s brother, Jacob. B. The letter pertained to an investigation in Shasta County some years earlier of Jacob B.’s sexual molestation of the stepfather’s then five-year-old son. By rendering such communications privileged and thus not subject to later derivative tort actions, the litigation privilege ensures “ ‘utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing’ ” and constitutes “ ‘a fundamental adjunct to the right of access’ ” to the courts. (Silberg v. Anderson (1990) 50 Cal.3d 205, 213 [ 266 Cal.Rptr. 638 , 786 P.2d 365 ]; see also Flatley v. Mauro (2006) 39 Cal.4th 299, 321-322 [ 46 Cal.Rptr.3d 606 , 139 P.3d 2 ].)
I also agree that the litigation privilege cuts off derivative tort actions for invasion of privacy when pled under our state Constitution’s article I, section 1. This is the first time this court has addressed that issue. The issue first arose 13 years ago in Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 44 [ 32 Cal.Rptr.2d 200 , 876 P.2d 999 ] (Heller). But after the majority there concluded that the plaintiff had not adequately pled a cause of action for invasion of privacy under the state Constitution (id. at p. 43), it refrained from deciding the applicability of the litigation privilege to such a claim properly pled.
I wrote separately in Heller . Unlike the majority, I would have allowed the plaintiff in Heller to pursue her cause of action under the state constitutional right of privacy. (Heller, supra, 8 Cal.4th at p. 56 (conc. & dis. opn. of Kennard, J.).) I simply observed that “the litigation privilege does not bar a constitutional right of action . . . .” (Ibid.)
Now that the issue has been squarely presented in this case, and upon further reflection, I am of the view that California Constitution’s article I, section 1, cannot be invoked to bar application of the litigation privilege to a claim for invasion of privacy.
The California Constitution is “the supreme law of the state” to which all statutes must conform. (Carter v. Seaboard Finance Co. (1949) 33 Cal.2d 564, 579 [ 203 P.2d 758 ].) Therefore, “[a] statute inconsistent with the California Constitution is, of course, void.” (Hotel Employees & Restaurant Employees Internat. Union v. Davis (1999) 21 Cal.4th 585, 602 [ 88 Cal.Rptr.2d 56 , 981 P.2d 990 ]; see also People v. Navarro (1972) 7 Cal.3d 248, 260 [ 102 *964 Cal.Rptr. 137 , 497 P.2d 481 ] [“Wherever statutes conflict with constitutional provisions, the latter must prevail.”].) More particularly, a statute that broadly and directly impinges on the right of privacy guaranteed by the state Constitution is void unless supported by a compelling governmental interest that cannot be achieved by less restrictive means. (American Academy of Pediatrics v. Lungren (1997) 16 Cal.4th 307, 348 [ 66 Cal.Rptr.2d 210 , 940 P.2d 797 ] (lead opn. of George, C. J.).)
Because a statute is subordinate to, and must be in conformity with, the state Constitution, a statutory privilege cannot of its own force defeat a right of action that is required or guaranteed by the state Constitution. In determining the scope of the constitutional privacy right, however, and whether that right exists in a particular situation, a court may consider traditional statutory privileges. I agree with the majority that the privacy right guaranteed by the state Constitution does not extend to situations covered by the litigation privilege.