Silberg v. Anderson

In Silberg v. Anderson (1990) 50 Cal. 3d 205, the parties to a dissolution proceeding retained an independent psychologist to evaluate the parties and submit recommendations on custody issues. Displeased with the findings, the husband sued his wife's attorney for failing to disclose a preexisting relationship with the psychologist, which allegedly resulted in the preparation of a biased and defamatory report. Detailing the expansive nature of the privilege and its underlying rationale, the California Supreme Court held Civil Code section 47 covers all tort claims based on negligent and intentional conduct. (Silberg v. Anderson, supra, at pp. 219-220.) It applies to any communication, whether or not it amounts to a publication and "it 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." (Id. at p. 212.) In Silberg v. Anderson (1990) the Supreme Court observed that the privilege "has been given broad application. Although originally enacted with reference to defamation, the privilege is now held applicable to any communication, whether or not it amounts to a publication . . . . Further, it 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. . . .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; (4) that have some connection or logical relation to the action." (See also Rubin v. Green (1993) 4 Cal. 4th 1187, 1193-1196 17 Cal. Rptr. 2d 828, 847 P.2d 1044; Moore v. Conliffe, supra, 7 Cal. 4th at pp. 640-641.) The purpose of the privilege, according to Silberg v. Anderson, supra, 50 Cal. 3d 205, "is to afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions." ( Id. at p. 213.) The decision continues: the privilege "further promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests. 'It is desirable to create an absolute privilege . . . not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with subsequent derivative actions . . . ." (Id. at p. 214.) "In immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result." (Ibid.)