This was not always the principle applied by our appellate courts. Pre-Silberg, there are several reported cases in which a very loose and general relationship between the statement and the putative litigation was deemed sufficient. Thus, in Pettit v. Levy (1972) 28 Cal.App.3d 484, 489, the court wrote: "The publication need not be pertinent, relevant or material in a technical sense to any issue if it has some connection or relation to the proceedings." After quoting that sentence, the court in Profile Structures, Inc. v. Long Beach Bldg. Material Co. (1986) 181 Cal.App.3d 437, 442, added: "Any doubt as to whether such relationship or connection existed must be resolved in favor of a finding of privilege." Finally, in Cayley v. Nunn (1987) 190 Cal.App.3d 300, a case relied upon in the trial court's orders here, the court summarized the applicable rule to be: "The privilege is denied to any participant in legal proceedings only when the matter is so palpably irrelevant to the subject matter that no reasonable man can doubt its irrelevancy and impropriety." (Id. at p. 304.)

Whatever the pre-Silberg merits of these expansive views, [FN 9] we think they are clearly outdated in view of the limitations we have quoted from that case. Additionally, even pre-Silberg, the appellate courts often found superficially litigation-related statements not protected by the privilege. Younger v. Solomon (1974) 38 Cal.App.3d 289 is perhaps the most interesting such case. It was an action brought by one Kern County attorney against another. The respondent was one of ten attorneys who had filed ethics charges against the appellant with the State Bar of California. Later, respondent filed a civil action against the appellant on behalf of one of the alleged victims of the latter's conduct. In the course of that action, the respondent filed extensive interrogatories, including one specifically referencing and incorporating the "ambulance chasing" State Bar charges. The appellant filed a cross-complaint seeking damages, contending that the publication via the interrogatory of the State Bar charges was tortious on several theories. (Id. at pp. 293-294.) The superior court granted summary judgment against the appellant on the basis of section 47(b). The court of appeal reversed, holding that "[p]ublication of these matters has no logical relation or connection with Mrs. Jenkins' action . . . . The terms 'related to' or 'connected with' necessarily require more than a remote relationship or common factual genesis between two otherwise unconnected subjects. To come within the privilege, the fact communicated itself must have some bearing on or connection with the subject matter of the litigation." (Id. at pp. 301-302.)

[FN 9] Not all pre-Silberg cases sustaining the privilege used such expansive terminology. In many others, the concept of "relevancy" (or some degree of it) was stressed. Thus, in Lerette v. Dean Witter Organization, Inc., supra, 60 Cal.App.3d at p. 576, fn. 5, the court summarized the two pertinent requirements as meaning that "the offending communication be relevant to the judicial proceeding."

Similarly, in Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893 (Kinnamon), disapproved on other grounds in Silberg, supra, 50 Cal.3d at p. 219, the court ruled that the privilege could not be invoked to foreclose an action for infliction of emotional distress against a collection attorney. In an effort to collect a later-dishonored check given his client, the attorney had written the plaintiff a demand letter which, among other things, threatened to file a criminal complaint. Noting that such action contravened the Rules of Professional Conduct, the court distinguished Lerette, supra, 60 Cal.App.3d 573, and held that the "threat . . . cannot serve the purpose of litigation" because it could be a cause for professional discipline. (Kinnamon, supra, 66 Cal.App.3d at p. 897.)

Finally, in Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal.App.3d 1513 (Carney), the court disallowed another claim of litigation privilege asserted by yet another firm of collection attorneys. These attorneys had advised the plaintiff, once via telephone and again by a confirming letter, that a "bench warrant" had been issued for her because of her failure to appear at a judgment-debtor examination, and had demanded immediate partial payment of the judgment before they would "recall the Bench Warrant." (Id. at pp. 1518-1519.) Of course, no bench warrant had issued. Justice Kennard, writing for a unanimous panel, reversed a grant of a demurrer based on the section 47(b) privilege. Noting that the threats of the attorneys might, themselves, well be a misdemeanor (see Bus. & Prof. Code, § 6128), she observed that the apparent "purpose of defendant attorney's extrajudicial statements was to deceive plaintiff and thus obtain an advantage over her." As a consequence of both that and the lack of any apparent intention to effect a settlement, the court ruled the statements were not made "to achieve a purpose of the litigation . . . ." (Carney, supra, 206 Cal.App.3d at pp. 1522-1523.)

We think these cases, and several others discussed earlier, establish an important point for both litigants and attorneys concerning prelitigation demands and the like. That point is that section 47(b) does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals. Indeed, the court of appeal in Lerette anticipated exactly the problem which this case highlights when it cautioned: "We recognize that the fact that a suit eventually is filed does not protect all defamatory communications made prior to the filing. But most potential abuse of this privilege for prelitigation communications can be prevented by enforcement of the relevancy requirement . . . ." (Lerette, supra, 60 Cal.App.3d at p. 578, fn. 6, emphasis supplied.)

Or, as our colleagues in Division Three of this district recently noted (lifting ever so gently from the language of Rubin [FN 10] in the process): "It is not too late in the day to establish the appropriate standards for extending the litigation privilege to communications made in anticipation of litigation." (Edwards v. Centex Real Estate Corp., supra, 53 Cal.App.4th 15, 33; see also fn. 8, ante.)

[FN 10] See Rubin, supra, 4 Cal.4th at p. 1194.

This case presents facts eminently befitting that goal. We have no difficulty in holding that the inclusion in Horton's demand letter to Excelsior of references to appellant's criminal record falls outside of the section 47(b) privilege. In the first place, Horton's particularization of appellant's criminal history was simply incorrect. It was alleged that he had been "in prison for repeatedly and violently assaulting his wife." It turned out that he wasn't in prison, but only county jail, and then for convictions for shooting at an unoccupied car and vandalism.

More importantly, we think any "connection" between such a conviction and the civil unfair competition focus of Horton's demand letter is, to be charitable about it, tenuous. Respondents attempt to "connect" the statements regarding appellant's criminal record with the dispute by arguing that the former "may have persuaded Excelsior that [appellant] was more than capable of committing unfair business practices since he had been convicted of more serious crimes in the past." This contention borders on the specious. First, the "unfair business practices" of which Proton and its attorneys complained in their March 29 letter are not "crimes." Second, one's proclivity to engage in such practices is in no way, shape or form predictable by whether he (a) beats his wife (b) shoots at unoccupied cars, or (c) commits vandalism.

The only other "connection" respondents offer is equally attenuated: they contend that, "if Proton decided to pursue litigation," appellant's convictions would be relevant because, if he became a witness, such would be admissible to impeach him under Evidence Code section 788. Thus, informing Excelsior of this fact in advance might achieve the goal of "avoiding litigation." First of all, respondents overlook the fact that admission of a prior felony conviction in a civil action is very much subject to the exercise of a court's discretion under Evidence Code section 352. (See Robbins v. Wong (1994) 27 Cal.App.4th 261, 274.) Second, it simply stretches credulity to the breaking point to believe that any part of respondents' motivation for including a reference to appellant's alleged wife beating was a desire to advise Excelsior that he might be subject to impeachment if used as a witness in a civil unfair competition action.

Rather, we think the reaction of Excelsior's Lee to the letter, i.e., that it was essentially "vindictive" behavior on the part of Proton and its attorneys, is not only reasonable but possibly the only reasonable interpretation. This is corroborated by the fact that only after writing it did Horton undertake to investigate appellant's criminal history.

Two of the pre-Silberg cases discussed above, Kinnamon and Carney, involved civil law disputes in which the challenged communication implicated, in one way or another, criminal law issues. In both, overly-aggressive collection attorneys sent demand letters which, in one case threatened to initiate, and in the other misrepresented the existence of, criminal proceedings. In both, the courts denied application of the privilege. We think the broader import of these holdings is that the use of the criminal records of individuals in purely civil disputes such as that between Proton and Excelsior is and should be fraught with peril. That is, surely, why our Rules of Professional Conduct send this warning shot across attorneys' bows: "A member shall not threaten to present criminal . . . charges to obtain an advantage in a civil dispute." [FN 11] (Cal. Rules of Prof. Conduct of State Bar, rule 5-100(A).)

[FN 11] By this reference, we are not suggesting that Horton's letter violated this rule, but only that the rule exemplifies the principle that adverting to criminal law matters in the course of purely civil disputes is strongly discouraged.

For the foregoing reasons, we hold that the prelitigation demand letter's reference to appellant's prior criminal history was not privileged under section 47(b).

Which leaves only the other issue raised by the pleadings and ruling below, i.e., whether the telephone communication initiated by Horton with appellant's parole officer was privileged under the section. Concerning it, appellant's complaint [FN 12] alleges that a Proton employee or agent stated to the parole officer that appellant (a) "stole defendant PROTON's trade secret [sic], information, and clients" and (b) "repeatedly and violently assaulted his wife."

[FN 12] There is precious little in the record provided by the parties as to the content of that conversation. Horton's declaration presents his version of it in four sentences, and neither party presents any part of the Martinez's deposition relevant to the content of the telephone call or calls.

As noted above, the tactic of contacting Martinez was suggested to Horton by Proton's CEO, Wang, who "wanted me to see if I could persuade NGUYEN'S probation officer to tell NGUYEN to stop soliciting PROTON'S employees and customers. . . ." This suggests rather strongly that Proton was not only ready but eager to use the access it fortuitously had to appellant's probation officer as leverage in a purely civil dispute with appellant and his new employer.

For the reasons discussed above, we hold that such a communication is also unprivileged.

The judgment is reversed. Costs on appeal are awarded to appellant.

Haerle, J.

We concur: Kline, P.J., and Ruvolo, J.