Stanford Law School - Robert Crown Law Library

Filed 4/5/07

IN THE SUPREME COURT OF CALIFORNIA

JACOB B.,
Plaintiff and Respondent,
S142496
v.
) Ct.App.
3
C049794
COUNTY OF SHASTA et al.,
Shasta
County
Defendants and Appellants.
Super. Ct. No. 149219

The litigation privilege of Civil Code section 47, subdivision (b) (section
47(b)), generally protects from tort liability any publication made in connection
with a judicial proceeding. We must decide whether the privilege protects a letter
that a supervisor of a county victim witness program wrote in connection with a
family law proceeding that involved visitation rights. The letter provided
information regarding whether one of the persons being considered for visitation
had molested his nephew a decade earlier. We conclude that the litigation
privilege does protect the letter. We must also decide whether the privilege
protects against a cause of action based on California’s constitutional right to
privacy. Consistent with our frequent statement that the privilege protects against
all tort causes of action except for malicious prosecution, including those alleging
invasion of privacy, we also conclude that the privilege does extend to causes of
action based on the constitutional right to privacy.
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Accordingly, we affirm the judgment of the Court of Appeal, which
reached the same conclusions.
I. FACTS AND PROCEDURAL HISTORY
Because neither party petitioned the Court of Appeal for a rehearing, we
take our facts largely from that court’s opinion. (Richmond v. Shasta Community
Services Dist. (2004) 32 Cal.4th 409, 415; see Cal. Rules of Court, rule
8.500(c)(2).)
In 1993, Laura and Charles B. reported to the Shasta County Sheriff’s
Office that Charles’s 15-year-old brother, plaintiff Jacob B., had molested their
five-year-old son, B.B.1 The investigating officer interviewed B.B. and believed
that a molestation had occurred, but the case was not prosecuted because of B.B.’s
young age and inability to communicate adequately. Laura applied to the county’s
Victim Witness Program (Victim Witness), a subdivision of the district attorney’s
office, for victim benefits on B.B.’s behalf. Victim Witness is authorized to
compensate a victim of any criminal act, even if there was no prosecution or
conviction. (See Gov. Code, §§ 13950, subd. (a), 13955.) To determine whether
benefits are payable, Victim Witness reviews medical and police reports and other
documents and decides, using a preponderance of the evidence standard, whether a
crime occurred. Victim Witness approved Laura’s claim and, as a result, B.B.
received $10,000 worth of counseling services. Victim Witness transferred
information regarding the case into a statewide victims-of-crime (VOX) computer
database. B.B. was identified in the VOX system as the victim of a molestation by
his uncle Jacob. The system listed B.B.’s date of birth but had no space for the
perpetrator’s birth date.

1
For convenience and to minimize confusion, we will generally use the first
names of these family members.
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In 1999, Laura and Charles were divorced. Then Laura married Todd B.
(no relation to Charles or Jacob), while Charles married Stephanie B. Todd and
Stephanie had been married to each other but also were divorced in 1999. Todd
and Stephanie had three biological sons together (the three sons). As a result,
Charles and Stephanie lived together with the three sons, while B.B. (Charles’s
biological son with Laura) lived with Todd and Laura. All of the children were
minors at the time. When Charles and Laura were divorced, they stipulated that
B.B. would have no contact with either his uncle Jacob or his paternal
grandparents (the grandparents). Similarly, Stephanie and Todd’s dissolution
decree prohibited contact between their three sons and Jacob and the same
grandparents.
Stephanie and Charles became unhappy with the court order prohibiting
contact between the three sons and Jacob or the grandparents. Consequently, an
ongoing dispute existed in Todd and Stephanie’s family law proceedings regarding
whether the three sons should be able to visit Jacob and the grandparents. On
February 11, 2003, Stephanie (now Charles’s wife) filed an order to show cause in
Tehama County Superior Court asking the family law court to permit visitation
between the three sons and Jacob and the grandparents due to the financial and
emotional hardships the existing visitation restrictions caused the stepfamilies.
On February 21, 2003, Laura (now Todd’s wife) came to the Victim
Witness office in Shasta County, crying and distraught. She told Victim Witness
advocate Carol Gall and Gall’s supervisor, defendant Stephanie Lloyd, that a court
hearing was scheduled that day in Tehama County in which the judge would
decide whether her son B.B. would have contact with his uncle Jacob. She asked
them to help her by writing to the court. As a result, Lloyd signed and gave Laura
a letter that is at the heart of this litigation (sometimes referred to as the February
21 letter).
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Gall obtained information from the VOX system indicating that Jacob had
molested his nephew B.B., and that B.B. had received $10,000 in Victim Witness
benefits. VOX also indicated that criminal proceedings were closed due to
insufficient evidence. Gall then wrote a letter for Lloyd’s signature. Dated
February 21, 2003, and written on the Shasta County District Attorney’s Office
stationery, the letter was addressed “To Whom It May Concern.” It stated: “In
November 1993, [Laura] came into our Victim Witness Center and established a
claim for her son [B.B.] who was a victim of child molestation. [B.B.] was a
victim of his uncle [Jacob] case # 93-18882 which was investigated by Shasta
County Sheriff Department. The Incident took place at [address]. The family has
used all of [B.B.’s] Victim Witness benefits for counseling due to the crime, which
was $10,000.” Lloyd signed the letter, listing her title as “Victim Advocate
Supervisor.”
Lloyd assumed that Jacob was an adult at the time of the molestation
because the VOX system referred to him as B.B.’s uncle and did not indicate he
was a minor. Both she and Gall understood that the letter would be presented to a
judge in family law court in Tehama County. Lloyd used the salutation, “To
Whom It May Concern” because she did not know the judge’s name and thought
using “Dear Mr. Judge” or “Your Honor” would sound awkward. In fact, the
Tehama County court proceeding involved visitation questions regarding the three
sons and Jacob and the grandparents, and it did not directly involve visitation
between Jacob and B.B. However, Laura felt that if the no-contact order were
dropped as to the three sons, removal of Jacob’s prohibition on visiting B.B.
would inexorably follow. Indeed, Charles had already sought to lift the restriction
on contact between Jacob and B.B. because the three sons and B.B. usually
traveled together for family visitation purposes.
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Laura gave the letter to her husband Todd, who attached it to his
declaration opposing Stephanie’s request to modify visitation and filed it in
Tehama County Superior Court. When Stephanie saw the letter, she gave it to
Jacob.
In July 2003, Jacob filed this lawsuit against defendants County of Shasta
and Lloyd. The lawsuit stated several causes of action including, as relevant here,
one for invasion of privacy based on the February 21 letter. A jury trial ensued.
At the end of plaintiff’s case, defendants moved for a nonsuit based on section
47(b)’s litigation privilege. The trial court ruled that the privilege protected the
letter and dismissed all causes of action except the one for invasion of privacy. It
also ruled that Jacob’s state constitutional privacy interests overrode the litigation
privilege and denied the nonsuit as to the invasion of privacy cause of action based
on the California Constitution. At the end of trial, the jury rendered a verdict in
Jacob’s favor of $30,000 against defendants. The trial court entered judgment
accordingly.
Defendants appealed. The Court of Appeal held that the litigation privilege
protected the letter against all of the causes of action, including the one based on
the constitutional right of privacy. It reversed the judgment and remanded the
matter to the trial court with directions to grant the motion for nonsuit in its
entirety and enter judgment in favor of defendants. We granted plaintiff’s petition
for review.
II. DISCUSSION
Section 47(b) defines a “privileged publication” as including one made
“[i]n any . . . judicial proceeding . . . .” The trial court ruled that this litigation
privilege attached to the February 21 letter, and that it protected defendants from
liability for all causes of action except for one based on the state constitutional
right of privacy. The Court of Appeal held that the privilege protected defendants
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from liability for all of the causes of action, including the constitutionally based
one. Plaintiff contends that both the trial court and the Court of Appeal erred in
finding the letter privileged at all. He argues the litigation privilege does not
protect the letter from any of the causes of action. He also contends that, even if
the litigation privilege attaches to the letter, it does not extend to the constitutional
right of privacy. He argues that section 47(b), being a mere statute, must yield to
the constitutional right to privacy.
We discuss these two contentions in order.
A. Whether the Litigation Privilege Protects the February 21 Letter
We have discussed the basic principles underlying section 47(b)’s litigation
privilege in many cases. The privilege “applies to any publication required or
permitted by law in the course of a judicial proceeding to achieve the objects of
the litigation, even though the publication is made outside the courtroom and no
function of the court or its officers is involved.” (Silberg v. Anderson (1990) 50
Cal.3d 205, 212, quoted in Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1057.)
“The usual formulation is that the privilege applies to any communication (1)
made in judicial or quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and (4) that have
some connection or logical relation to the action.” (Silberg v. Anderson, supra, at
p. 212.)
“The purposes of section 47, subdivision (b), are to afford litigants and
witnesses free access to the courts without fear of being harassed subsequently by
derivative tort actions, to encourage open channels of communication and zealous
advocacy, to promote complete and truthful testimony, to give finality to
judgments, and to avoid unending litigation.” (Rusheen v. Cohen, supra, 37
Cal.4th at p. 1063.) Another purpose is to “promote[] effective judicial
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proceedings” by encouraging full communication with the courts. (Flatley v.
Mauro (2006) 39 Cal.4th 299, 322.) To further these purposes, the privilege has
been broadly applied. It is absolute and applies regardless of malice. (Rusheen v.
Cohen, supra, at p. 1063; Silberg v. Anderson, supra, 50 Cal.3d at pp. 215-216;
see also Ribas v. Clark (1985) 38 Cal.3d 355, 364-365; Albertson v. Raboff (1956)
46 Cal.2d 375, 380-381.) Indeed, the privilege extends even to civil actions based
on perjury. (Rusheen v. Cohen, supra, at p. 1058; Kachig v. Boothe (1971) 22
Cal.App.3d 626, 641.) “ ‘The resulting lack of any really effective civil remedy
against perjurers is simply part of the price that is paid for witnesses who are free
from intimidation by the possibility of civil liability for what they say.’ ” (Ribas v.
Clark, supra, at p. 365, quoting Prosser, Law of Torts (4th ed. 1971) p. 778.)
The February 21 letter fits squarely within this privilege. As the Court of
Appeal explained, it “constituted a ‘communication.’ It was made in the context of
a judicial proceeding, i.e., a pending case in Tehama County. Lloyd, who was the
custodian of information relevant to the action, was a witness/participant. Finally,
the letter furthered the objects of the litigation, since the information it conveyed
had relevance to a family law visitation dispute.” The Court of Appeal elaborated
on this latter point: “One issue before the family law court was whether a
judicially imposed restriction on Jacob having contact with Todd’s sons should be
lifted. The fact that Victim Witness, a county agency, had determined that Jacob
molested his minor nephew B.B. was relevant to and connected with that issue and
therefore the litigation.”
We add that when a court must make very difficult and critical decisions
regarding child visitation, it should receive the maximum amount of relevant
information. Accordingly, “Case law is clear that section 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,
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Inc. (2000) 83 Cal.App.4th 1296, 1302.) In Obos v. Scripps Psychological
Associates, Inc. (1997) 59 Cal.App.4th 103, 107, the court noted that “obviously
informing the children’s counsel and therapist of the allegations [regarding the
mother’s boyfriend], and inquiring as to their veracity, furthered the goal of
ascertaining which custodial arrangement was in the children’s best interests.”
Similarly, in this case, providing information regarding whether one of the persons
considered for visitation rights had previously molested his nephew obviously
furthered the goal of ascertaining which visitation arrangement was in the
children’s best interest. Consistent with the general policies behind the litigation
privilege, public agencies like Victim Witness must be permitted to provide such
information without fear of being harassed by derivative lawsuits.
Arguing against this conclusion, plaintiff notes, correctly, that the privilege
protects only against communicative acts and not against noncommunicative acts.
(E.g., Ribas v. Clark, supra, 38 Cal.3d at pp. 363-365 [privilege applies to
testimony, which is communicative, but not to alleged earlier illegal
eavesdropping, which is noncommunicative].) “Because the litigation privilege
protects only publications and communications, a ‘threshold issue in determining
the applicability’ of the privilege is whether the defendant’s conduct was
communicative or noncommunicative.” (Rusheen v. Cohen, supra, 37 Cal.4th at
p. 1058, quoting Kimmel v. Goland (1990) 51 Cal.3d 202, 211.) However, “if the
gravamen of the action is communicative, the litigation privilege extends to
noncommunicative acts that are necessarily related to the communicative
conduct . . . . Stated another way, unless it is demonstrated that an independent,
noncommunicative, wrongful act was the gravamen of the action, the litigation
privilege applies.” (Rusheen v. Cohen, supra, at p. 1065.)
Plaintiff argues that, for these purposes, this action is based on the County’s
noncommunicative conduct “in accessing the data through the VOX system and
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disclosing it to the victim’s mother.” We disagree. Lloyd’s conduct in accessing
the VOX system, by itself, was noncommunicative, but that act (which plaintiff
does not even contend was unlawful) is not the gravamen of the action. As the
Court of Appeal explained, “the gravamen of Jacob’s invasion of privacy claim
was not Lloyd’s noncommunicative conduct in accessing data through the VOX
system and disclosing it to the victim’s mother. The alleged injury stems from the
publication of the information in a judicial proceeding, thereby exposing it to
public view.” Moreover, because “the cause of action is based on a
communicative act, the litigation privilege extends to those noncommunicative
actions which are necessarily related to that communicative act.” (Rusheen v.
Cohen, supra, 37 Cal.4th at p. 1052.)
Citing Welfare and Institutions Code section 827, plaintiff also argues that,
because he was a juvenile at the time of the alleged molestation, the information
obtained from the VOX system was confidential and could not be released without
a prior court order. Thus, he continues, the letter broke confidentiality laws and,
accordingly, is not privileged. The Court of Appeal expressed doubt that Lloyd
broke any confidentiality laws. It explained: “Jacob relies exclusively on Welfare
and Institutions Code section 827, which, in February 2003, shielded from public
view any ‘petition’ filed in juvenile court or ‘other documents filed in that case or
made available to the probation officer in making his or her report, or to the judge,
referee, or other hearing officer.’ (§ 827, former subd. (a), as amended by Stats.
1999, ch. 996, § 1 [text in former subd. (a) redesignated as subd. (e)]; see also
Historical and Statutory Notes, 73A West’s Ann. Welf. & Inst. Code (2006 supp.)
foll. § 827, p. 141.) However, because a juvenile court case was never opened as a
result of the 1993 investigation, defendants do not appear to have violated the
provisions of that section, and thus Jacob’s argument is flawed at its inception.”
Citing T.N.G. v. Superior Court (1971) 4 Cal.3d 767, plaintiff challenges the Court
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of Appeal’s conclusion that Welfare and Institutions Code section 827’s
application depends on the existence of a juvenile court proceeding. We need not
resolve this question, for we agree with the Court of Appeal’s primary conclusion
that the litigation privilege protects the February 21 letter even if we assume that
the disclosure violated juvenile record confidentially laws.
As noted, the cases describe the litigation privilege as absolute, regardless
of malice, and extending even to perjury. But the cases also contain language that
appears to make the privilege less than absolute. As stated in a representative case
(the language is oft repeated) the privilege applies to a “publication required or
permitted by law in the course of a judicial proceeding” and to a communication
“by litigants or other participants authorized by law.” (Silberg v. Anderson, supra,
50 Cal.3d at p. 212, italics added.) Plaintiff argues that, because the letter broke
confidentiality laws, it was not permitted by law and Lloyd was not authorized by
law to communicate the information to the court. The same sort of argument
could be made regarding perjury. Obviously, perjury is not permitted by law. But
the cases are clear that the litigation privilege extends to civil actions based on
perjury. To resolve this question, we must closely examine what the terms
“permitted by law” and “authorized by law” mean in this context.
This language appears to date back to the early decision of Albertson v.
Raboff, supra, 46 Cal.2d 375. In that case, the plaintiff sued the defendant for
alleged false representations made in a notice of lis pendens that the defendant had
recorded in conjunction with an earlier legal action between the parties. We had
to decide whether the litigation privilege extended to a recorded document that did
not directly involve the courts. In holding that it did, we stressed section 47(b)’s
broad reach. “It is our opinion that the privilege applies to any publication, such
as the recordation of a notice of lis pendens, that is required [citation] or permitted
[citation] by law in the course of a judicial proceeding to achieve the objects of the
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litigation, even though the publication is made outside the courtroom and no
function of the court or its officers is invoked. [Citation.] . . . If the publication
has a reasonable relation to the action and is permitted by law, the absolute
privilege attaches. [Citations.] It therefore attaches to the recordation of a notice
of lis pendens, for such a publication is permitted by law, and like other
documents that may be filed in an action, it has a reasonable relation thereto and it
is immaterial that it is recorded with the county recorder instead of being filed
with the county clerk.” (Albertson v. Raboff, supra, at pp. 380-381, italics added.)
It should be apparent that in Albertson, by using the term “permitted by
law,” we meant to broaden the privilege’s reach beyond traditional limits by
including any category of publication permitted by law. We did not suggest that
the specific publication must be permitted. This was the conclusion of a Court of
Appeal decision that considered this question. “Appellants point to the language
of Albertson v. Raboff, supra, 46 Cal.2d 375, at page 380, to the effect that the
privilege applies to any publication that is ‘permitted’ by law, as inferentially
denying the privilege to false documents. However, in the light of cases decided
before and after Albertson, it is apparent that the court in that case intended the
language used to apply merely to the category of evidence or documents. The
court did not intend to require that the evidence or documents be accurate or
truthful before the privilege attached. To hold otherwise would be inconsistent
with the general public purpose of the privilege to encourage the utmost freedom
of access to the courts and quasi-judicial bodies.” (Pettitt v. Levy (1972) 28
Cal.App.3d 484, 489, cited in Silberg v. Anderson, supra, 50 Cal.3d at p. 212.)
The result in Albertson v. Raboff, supra, 46 Cal.2d 375, itself demonstrates
this point. A notice of lis pendens, as a category, is permitted by law and, hence,
is privileged, even if a specific notice, being perjurious, might be considered not
permitted by law. The same would be true of courtroom testimony, which
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obviously is a category permitted by law. One may readily acknowledge that
perjured testimony is not permitted, but the privilege extends even to such
testimony because testimony in general is permitted by law. Another example is
found in Rusheen v. Cohen, supra, 37 Cal.4th 1048, where we held that the
privilege extends to “filing allegedly false declarations of service to obtain a
default judgment . . . .” (Id. at p. 1052.) Obviously, the law does not permit false
declarations, but declarations of service to obtain a default judgment are a
category of publication permitted by law. Hence, the litigation privilege protects
all such declarations.
Thus, in this case, the question is whether the February 21 letter is a
category of communication permitted by law. We conclude it is. The law permits
a communication to the court relevant to a family law decision it must make.
Accordingly, such a communication is privileged even if a specific
communication might not be permitted by law because, for example, it was either
perjurious or meant to be kept confidential. Just as the privilege extends to
communications otherwise within section 47(b)’s reach that are perjurious, it also
extends to communications otherwise within its reach that might be deemed
confidential.
For these reasons, we agree with the trial court and the Court of Appeal that
section 47(b)’s litigation privilege extends to the February 21 letter.
B. Whether the Litigation Privilege Applies to an Action Based on the
Constitutional Right to Privacy
Plaintiff also argues that even if the February 21 letter was privileged, the
privilege does not apply to a cause of action based on California’s constitutional
right to privacy, which the voters added to the Constitution by an initiative in
1972. (Cal. Const., art. I, § 1; see Hill v. National Collegiate Athletic Assn. (1994)
7 Cal.4th 1, 15 (Hill).)
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We have repeatedly stated that the litigation privilege bars all tort causes of
action except malicious prosecution. (E.g., Rusheen v. Cohen, supra, 37 Cal.4th at
p. 1057; Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360.) We
have specifically stated that the privilege bars causes of action for invasion of
privacy. (Kimmel v. Goland, supra, 51 Cal.3d at p. 209; Silberg v. Anderson,
supra, 50 Cal.3d at p. 215; Ribas v. Clark, supra, 38 Cal.3d at p. 365.) In Ribas v.
Clark, we quoted Prosser’s explanation of why the privilege extends even to civil
actions based on perjury (see pt. II.A, ante), then stated, “This policy is equally
compelling in the context of common law and statutory claims for invasion of
privacy; there is no basis for distinguishing between the two.” (38 Cal.3d at p.
365.)
The question here is whether we should distinguish between common law
and statutory claims for invasion of privacy and a claim based on the state
Constitution. Although we have stated in seemingly absolute terms that the “only
exception to application of section 47(2) [now 47(b)] to tort suits has been for
malicious prosecution actions” (Silberg v. Anderson, supra, 50 Cal.3d at p. 216),
we have never specifically stated that the privilege bars an action based on the
constitutional right to privacy. Indeed, in Heller v. Norcal Mutual Ins. Co. (1994)
8 Cal.4th 30, 44, we recognized but did not decide “plaintiff’s claim that a
constitutional invasion of privacy defeats application of the litigation privilege.”
Two Court of Appeal decisions have concluded that the litigation privilege
must yield to the constitutional right of privacy. (Jeffrey H. v. Imai, Tadlock &
Keeney (2000) 85 Cal.App.4th 345, 355-361; Cutter v. Brownbridge (1986) 183
Cal.App.3d 836, 844-847.) They held that which interest prevails—the
constitutional right to privacy or the litigation privilege—must be decided on a
case-by-case basis. As summarized in the more recent case, “the application of
the litigation privilege in this constitutional context calls for a balancing of
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interests, despite the unqualified application of the privilege in other legal
contexts.” (Jeffrey H. v. Imai, Tadlock & Keeney, supra, at p. 355.) The main
argument in favor of this conclusion is that the litigation privilege, being merely a
statutory creation, must yield to the constitutional right to privacy.
The Court of Appeal in Wise v. Thrifty Payless, Inc., supra, 83 Cal.App.4th
at pages 1302-1303 and footnote 1, disagreed with Cutter v. Brownbridge, supra,
183 Cal.App.3d 836, and the Court of Appeal in this case disagreed with both
Cutter v. Brownbridge, supra, 183 Cal.App.3d 836, and Jeffrey H. v. Imai,
Tadlock & Keeney, supra, 85 Cal.App.4th 345. The Wise court and the Court of
Appeal here concluded that the litigation privilege bars a privacy cause of action
based on the Constitution as well as one based on common law or statute.
We conclude that the litigation privilege applies even to a constitutionally
based privacy cause of action. Obviously, if section 47(b) conflicted with
California Constitution, article I, section 1, the statute would have to yield to the
Constitution. The absolute privilege of section 47(b) would be unconstitutional
and hence invalid to the extent of the conflict. But the statutory and constitutional
provisions are not in conflict; they can and do coexist. The litigation privilege has
existed “[f]or well over a century,” and “[a]t least since then-Justice Traynor’s
opinion in Albertson v. Raboff (1956) 46 Cal.2d 375, California courts have given
the privilege an expansive reach.” (Rubin v. Green (1993) 4 Cal.4th 1187, 1193-
1194.) The parties have not cited, and we are not aware of, anything in the ballot
materials or history of the 1972 initiative that added the constitutional right to
privacy that suggested any intent to limit the scope of this preexisting privilege or
to create a right of privacy that would prevail over the privilege. Rather, as we
explain, we believe the constitutional right contains within it a limitation
previously based on statute. When the voters adopted California Constitution,
article I, section 1, they did so mindful of the preexisting litigation privilege.
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The constitutional right to privacy has never been absolute; it is subject to a
balancing of interests. In Hill, we considered the nature of the constitutional right
to privacy. We explained, “Privacy concerns are not absolute; they must be
balanced against other important interests. [Citations.] . . . [¶] The diverse and
somewhat amorphous character of the privacy right necessarily requires that
privacy interests be specifically identified and carefully compared with competing
or countervailing privacy and nonprivacy interests in a ‘balancing test.’ The
comparison and balancing of diverse interests is central to the privacy
jurisprudence of both common and constitutional law. [¶] Invasion of a privacy
interest is not a violation of the state constitutional right to privacy if the invasion
is justified by a competing interest.” (Hill, supra, 7 Cal.4th at pp. 37-38, italics
added.) These “other important interests” need not be constitutionally based.
Even nonconstitutional interests can outweigh constitutional privacy interests. (Id.
at pp. 43-44, 57-58 [interests in sporting integrity and health and safety of athletes
permits invasion of privacy].) Among the competing interests against which the
privacy right must be balanced is the longstanding litigation privilege.
The courts in Jeffrey H. v. Imai, Tadlock & Keeney, supra, 85 Cal.App.4th
345, and Cutter v. Brownbridge, supra, 183 Cal.App.3d 836, interpreted our
opinion in Hill as requiring a balancing of the litigation privilege and the
constitutional right of privacy on a case-by-case basis. We disagree. In adopting
the litigation privilege, the Legislature has already done the balancing. The
litigation privilege furthers “the vital public policy of affording free access to the
courts and facilitating the crucial functions of the finder of fact.” (Ribas v. Clark,
supra, 38 Cal.3d at pp. 364-365; see also the cases cited in pt. II.A, ante.) This
policy exists even if a privacy cause of action invokes the Constitution, and not on
a case-by-case basis but in all cases. Litigants and witnesses could never be free
of “fear of being harassed subsequently by derivative tort actions” (Rusheen v.
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Cohen, supra, 37 Cal.4th at p. 1063) if the privilege applied only in some cases
but not others. This policy caused us to conclude that the litigation privilege bars
all common law and statutory causes of action for invasion of privacy. (Ribas v.
Clark, supra, at p. 365.) It applies equally to a constitutionally based cause of
action for invasion of privacy. The same compelling need to afford free access to
the courts exists whatever label is given to a privacy cause of action. Indeed, as
the Court of Appeal noted here, “recognition of such a distinction would allow a
plaintiff to easily overcome the privilege on any privacy claim by simply inserting
the adjective ‘constitutional’ into his or her pleadings and jury instructions.”
“If the policies underlying section 47(b) are sufficiently strong to support
an absolute privilege, the resulting immunity should not evaporate merely because
the plaintiff discovers a conveniently different label for pleading what is in
substance an identical grievance arising from identical conduct as that protected
by section 47(b).” (Rubin v. Green, supra, 4 Cal.4th at p. 1203.) Section 47(b)’s
litigation privilege bars a privacy cause of action whether labeled as based on
common law, statute, or Constitution. We disapprove of Jeffrey H. v. Imai,
Tadlock & Keeney, supra, 85 Cal.App.4th 345, and Cutter v. Brownbridge, supra,
183 Cal.App.3d 836, to the extent they are inconsistent with this opinion.
III. CONCLUSION
We affirm the judgment of the Court of Appeal.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
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CONCURRING OPINION BY KENNARD, J.
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; see also Flatley v. Mauro (2006) 39 Cal.4th 299, 321-322.)
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 (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
1

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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.) 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; see also People v. Navarro (1972) 7 Cal.3d
248, 260 [“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
(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
2

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with the majority that the privacy right guaranteed by the state Constitution does
not extend to situations covered by the litigation privilege.
KENNARD,
J.
3

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Jacob B. v. County of Shasta
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 137 Cal.App.4th 225
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S142496
Date Filed: April 5, 2007
__________________________________________________________________________________

Court:

Superior
County: Shasta
Judge: Jack Halpin*

__________________________________________________________________________________

Attorneys for Appellant:

Brickwood Law Office, Gary Brickwood and Monique Grandaw for Defendants and Appellants.

__________________________________________________________________________________

Attorneys for Respondent:

Halkides, Morgan & Kelley, Arthur L. Morgan, Paul C. Meidus and John P. Kelley for Plaintiff and
Respondent.

*Retired judge of the Shasta Superior Court, assigned by the Chief Justice pursuant to article VI, section 6
of the California Constitution.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Gary Brickwood
Brickwood Law Office
1135 Pine Street, Suite 210
Redding, CA 96001
(530) 245-1877

John P. Kelley
Halkides, Morgan & Kelley
833 Mistletoe Lane
Redding, CA 96002
(530) 221-8150

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Opinion Information

Date:	Docket Number:
Thu, 04/05/2007	S142496

Disposition
Apr 5 2007	Opinion: Affirmed

Dockets
Apr 10 2006	Petition for review filed   Jacob B., Respondent John P. Kelley, Counsel
Apr 10 2006	Record requested
Apr 12 2006	Received Court of Appeal record   one doghouse
May 3 2006	Answer to petition for review filed   Shasta County and Stephanie Lloyd, Respondents Monique Grandaw, Counsel
May 22 2006	Time extended to grant or deny review   to and including July 7, 2006, or the date upon which review is either granted or denied.
Jun 14 2006	Petition for review granted (civil case)   Votes: Geroge, C.J., Kennard, Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Jun 14 2006	Letter sent to:   counsel; regarding Certification of Interested Entities or Persons.
Jun 22 2006	Certification of interested entities or persons filed   B. (Jacob), respondent John P. Kelley, counsel
Jun 26 2006	Certification of interested entities or persons filed   Shasta County, defendant Gary C. Brickwood, counsel
Jul 17 2006	Opening brief on the merits filed   Jacob B., plaintiff and respondent John P. Kelley, counsel (CRC 40.1B)
Aug 15 2006	Answer brief on the merits filed   Shasta County and Stephanie Lloyd, defendants Monique Grandaw, counsel
Aug 28 2006	Reply brief filed (case fully briefed)   Jacob B., Respondent by John P. Kelley, counsel
Dec 5 2006	Case ordered on calendar   Tuesday, January 9, 2007, at 9:00 a.m., in San Francisco
Jan 9 2007	Cause argued and submitted
Apr 4 2007	Notice of forthcoming opinion posted
Apr 5 2007	Opinion filed: Judgment affirmed in full   Majority Opinion by Chin, J. joined by George C.J., Baxter, Werdegar, Moreno and Corrigan, JJ., Concurring Opinion by Kennard J.
May 11 2007	Remittitur issued (civil case)
May 16 2007	Received:   Receipt for Remittitur, Court of Appeal, Third Appellate District

Briefs
Jul 17 2006	Opening brief on the merits filed
Aug 15 2006	Answer brief on the merits filed
Aug 28 2006	Reply brief filed (case fully briefed)

If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website