Carney v. Rotkin, Schmerin & McIntyre

In Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal. App. 3d 1513, the defendant law firm was hired to collect a money judgment obtained by its client against Ms. Carney. Carney, an elderly widow, was unable to find transportation and so failed to appear at a court-ordered judgment-creditor examination. When she called to explain, the firm told her, falsely, that a bench warrant had been issued and would not be recalled unless she paid $ 1,000 toward her debt. Since she was unable to pay, Carney stayed in her apartment for several days expecting to be arrested. Once she discovered there was no warrant, she sued the law firm for negligent and intentional infliction of emotional distress, abuse of process, and unfair debt collection practices. The law firm demurred on the ground, among others, that its statements to Carney were absolutely privileged under Civil Code section 47, subdivision (2) (now subd. (b)). The trial court sustained the demurrer without leave to amend, and dismissed the action. Carney appealed. The appellate court reversed. It concluded the privilege did not apply because the third prong of the four-prong test (see above) was lacking, i.e., the law firm's statements to Carney had not been made "to 'serve the purpose of litigation' " because they were not only false but also arguably a violation of section 6128 of the Business and Professions Code. ( Carney v. Rotkin, Schmerin & McIntyre, supra, 206 Cal. App. 3d at p. 1522.)