COUNSEL:
Wylie A. Aitken, Darren O. Aitken and Herbert Hafif for Plaintiffs and Appellants.

Kinsella, Boesch, Fujikawa & Towle, Dale F. Kinsella, Catherine H. Coleman, Alan R. Kossoff, Katten, Muchin, Zavis & Weitzman, Katten, Muchin & Zavis, Mark A. Wooster, Zia F. Modabber and E. Randol Schoenberg for Defendants and Respondents.

CROSKEY, Acting P. J.

Barry K. Rothman and the Law Offices of Barry K. Rothman (hereafter, collectively, Rothman) appeal from judgments of dismissal entered in favor of Michael Jackson, MJJ Productions, Inc. (hereafter, collectively, Jackson), Bertram Fields, the Law Offices of Greenberg, Glusker, Fields, Claman & Machtinger (Fields), Anthony Pellicano and the Pellicano Investigative Agency (Pellicano) in Rothman's action for defamation, tortious interference with business relationships and intentional infliction of emotional distress. The judgments were entered after the defendants' demurrers were sustained without leave to amend. The demurrers were sustained as to all causes of action solely on the ground of the litigation privilege in Civil Code section 47, subdivision (b). [FN 1]

[FN 1] Unless otherwise noted, further statutory references are to the Civil Code.

In parts pertinent to this discussion, section 47 provides: "A privileged publication or broadcast is one made: [P] . . . [P] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) [concerning the writ of mandate] of Title 1 of Part 3 of the Code of Civil Procedure . . . ." Effective January 1, 1991, section 47 was renumbered, so that former subdivisions (1) through (5) are now designated as subdivisions (a) through (e), and the internal subdivisions of subdivision (b) and following are designated as subdivision (b)(1) and so forth. (Stats. 1990, ch. 1491, s. 1, p. 6909.) Section 47 and all of its subdivisions will be referred to throughout this opinion by their current letter and number designations.

The relevant facts in this case are taken from Rothman's complaint and are deemed to be true. (See Moore v. Conliffe (1994) 7 Cal. 4th 634, 638 [29 Cal. Rptr. 2d 152, 871 P.2d 204].) In July of 1993, Rothman was retained by Mr. C. and his son, a minor, to seek redress against the popular singer, Michael Jackson, for alleged torts against the boy. Rothman contacted Jackson and began to negotiate on behalf of the C. family, but did not immediately file a lawsuit, as the family wished the matter kept confidential.

While negotiations were proceeding, a psychological evaluation of the boy, which had been filed with the Los Angeles County Department of Children's Services, as required by California's child abuse reporting laws (Pen. Code, sec. 11164 et seq.), was "leaked" by a person or persons unknown. However, no claim has been made that Rothman or his clients were responsible for the leak. In any event, whoever caused the leak, its result was what Rothman characterizes as a "firestorm" of publicity, for Jackson is a celebrity among celebrities, and the charges contained in the psychological evaluation were sensational.

The defendants responded to this negative public exposure by calling a press conference on August 29, 1993, and by making other statements to the media thereafter, in which the defendants not only denied the charges against Jackson, but made countercharges that Rothman and his clients had knowingly and intentionally made false accusations against Jackson in order to extort money from him. Extortion is, of course, a crime (Pen. Code, sec. 518 et seq.), and the charge was inevitably damaging to Rothman's professional reputation. Moreover, as an additional consequence of the extortion charges, Rothman felt compelled to withdraw from his representation of the C. family, causing him significant economic damage, as the C.'s eventually retained other counsel who negotiated a settlement with Jackson that was never disclosed to the public, but was reputed to be over $ 25 million.

On July 29, 1994, Rothman filed his original complaint for conspiracy to interfere with a business relationship, defamation and intentional infliction of emotional distress. Demurrers were sustained with leave to amend as to all causes of action except conspiracy. The first amended complaint was filed on December 21, 1994. Demurrers filed on January 25, March 14 and March 15, 1995, were sustained without leave to amend. All parties stipulated to the sustaining of the demurrer solely on the ground of the litigation privilege (sec. 47, subd. (b)), so the issue of privilege could be resolved as soon as possible. Subsequent motions for a new trial were denied. This timely appeal followed.

Rothman contends the trial court erred in sustaining the defendants' demurrer on the ground of the litigation privilege set forth in section 47, subdivision (b), as that privilege does not protect statements to nonparticipants in the litigation, and, in particular, does not protect the statements to the media made in this case.

1. Standard of Review

On appeal of a judgment of dismissal following the sustaining of a demurrer, the appellate court assumes the truth of all properly pleaded material allegations of the complaint and gives the complaint a reasonable interpretation by reading it as a whole and its several parts in context. (Moore v. Conliffe, supra, 7 Cal. 4th at p. 638; Silberg v. Anderson (1990) 50 Cal. 3d 205, 210 [266 Cal. Rptr. 638, 786 P.2d 365].) The interpretation of section 47, subdivision (b) is a pure question of law which we review independently. (Ghirardo v. Antonioli (1994) 8 Cal. 4th 791, 799-801 [35 Cal. Rptr. 2d 418, 883 P.2d 960] [application of a rule of law to undisputed facts is a question of law, subject to independent review]; Susan A. v. County of Sonoma (1991) 2 Cal. App. 4th 88, 93 [3 Cal. Rptr. 2d 27] [availability of the litigation privilege is a matter of law if facts are undisputed].)

2. General Principles Governing the Litigation Privilege Sec. 47, subd. (b))

Defamation consists of false and unprivileged written, oral or recorded publications which expose the defamed person to hatred, contempt, ridicule or obloquy or cause the person to be shunned or avoided or injured in his or her occupation (sec. 45, defining libel), or which charge the person with crime, suggest that the person has an infectious or loathsome disease or is impotent or unchaste, tend to injure the person in his or her business or profession, or otherwise cause actual damage (sec. 46, defining slander). It is undisputed that the statements alleged in this case fall within the above definitions. In any event, the sole basis upon which the defendants' demurrers were sustained was that the statements -- whatever their nature -- were absolutely privileged under section 47, subdivision (b). Thus, the sole issue on appeal is whether that privilege was correctly applied.

The general principles governing the application of the litigation privilege are familiar. The privilege applies to any publication or other communication required or permitted by law in the course of a judicial or quasi-judicial proceeding to achieve the objects of the litigation, whether or not the publication is made in the courtroom or in court pleadings, and whether or not any function of the court or its officers is involved. (Moore v. Conliffe, supra, 7 Cal. 4th at p. 641; Silberg v. Anderson, supra, 50 Cal. 3d at p. 212; Albertson v. Raboff (1956) 46 Cal. 2d 375, 380-381 [295 P.2d 405].) The privilege also applies to statements made in dialogues preliminary to litigation. (Rubin v. Green (1993) 4 Cal. 4th 1187, 1194 [17 Cal. Rptr. 2d 828, 847 P.2d 1044].) The privilege, if applicable, would preclude not only a defamation action, but also any actions by Rothman for intentional interference with existing and prospective economic relationships (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal. 3d 1118, 1123, 1132 [270 Cal. Rptr. 1, 791 P.2d 587]; Silberg v. Anderson, supra, 50 Cal. 3d at p. 215) and intentional infliction of emotional distress (Ribas v. Clark (1985) 38 Cal. 3d 355, 364 [212 Cal. Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417]; Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal. App. 3d 573, 579 [131 Cal. Rptr. 592]). Only malicious prosecution actions are exempt from section 47, subdivision (b). (Rubin v. Green, supra, 4 Cal. 4th at p. 1194; Financial Corp. of America v. Wilburn (1987) 189 Cal. App. 3d 764, 771 [234 Cal. Rptr. 653].)

The privilege is generally described as applying 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, 50 Cal. 3d at p. 212; Susan A. v. County of Sonoma, supra, 2 Cal. App. 4th at p. 93.) The Supreme Court has characterized the third prong of the foregoing test, the requirement that a communication be in furtherance of the objects of the litigation, as being "simply part of" the fourth, the requirement that the communication be connected with, or have some logical relation to, the action. (Silberg v. Anderson, supra, 50 Cal. 3d at pp. 219-220.) The high court has specifically disapproved any interpretation of the "furtherance" requirement as a test of the motives, morals, ethics or intent of the person claiming the privilege. (Id. at p. 220.) Statements to nonparticipants in the action are generally not privileged under section 47, subdivision (b), and are thus actionable unless privileged on some other basis. (50 Cal. 3d at p. 219; Susan A. v. County of Sonoma, supra, 2 Cal. App. 4th at pp. 93, 95-96; Financial Corp. of America v. Wilburn, supra, 189 Cal. App. 3d at p. 778.)

The question whether the litigation privilege covered statements which were made to the press during judicial or quasi-judicial proceedings has been directly ruled upon by the Supreme Court only once. That was in Washer v. Bank of America (1943) 21 Cal. 2d 822 [136 P.2d 297, 155 A.L.R. 1338] (disapproved on other grounds in MacLeod v. Tribune Publishing Co. (1959) 52 Cal. 2d 536, 551 [343 P.2d 36].) In Washer, the bank discharged Washer and was ordered by the National Labor Relations Board to reinstate him, whereupon a bank vice-president made a statement to the press clearly implying that Washer had been fired for falsifying an expense account and "flagrant insubordination." (21 Cal. 2d at pp. 824-825.) When Washer sued for defamation, the trial court sustained demurrers by the defendants and dismissed the action. The Supreme Court reversed. Among other things, the high court held the vice-president's statements to the press were not protected by the privilege in section 47, subdivision (b), because "[n]one of the authorities cited by the respondents extend[ed] the privilege beyond a communication to one actually involved in the proceeding, either as a judge, attorney, party, or witness." (21 Cal. 2d at p. 832.)

In Albertson v. Raboff, supra, 46 Cal. 2d 375, the Supreme Court held that the scope of the litigation privilege includes any publication that has "a reasonable relation to the action." (Id. at p. 381.) This construction of the privilege broadened its coverage to include both publications not previously understood to be covered, and publications addressed to persons other than a "judge, attorney, party, or witness" in the proceeding to which the challenged publication related. Nevertheless, Albertson did not overrule the precedent established by Washer respecting statements to the public at large through the press. Far from it. The publication that was challenged in Albertson was a lis pendens recorded as to property in which the plaintiff in a previous lawsuit -- the defendant in the defamation action -- claimed an interest, which he sought to enforce by means of his suit. (Id. at pp. 377-378.)

In ruling for the defamation defendant in Albertson, the Supreme Court reasoned as follows: "[T]he privilege applies to any publication, such as the recordation of a notice of lis pendens, that is required (e.g., Code Civ. Proc., sec. 749) or permitted (e.g., Code Civ. Proc., sec. 409) 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 invoked [Citation]. Thus, it is not limited to the pleadings, the oral or written evidence, to publications in open court or in briefs or affidavits. 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." (46 Cal. 2d at pp. 380-381.) [FN 2] A lis pendens is a far cry from a press release trumpeting one party's version of a legal dispute, albeit that both are addressed to the public at large.

[FN 2] In 1956, when Albertson, supra, was decided, Code of Civil Procedure section 749 provided for procedures in an action for quiet title by an adverse possessor. The statute required the filing of a lis pendens in connection with such an action. Section 749 was repealed in 1980. (Stats. 1980, ch. 44, sec. 8, p. 109.) Its provisions have been substantially reenacted in sections 760.020, 761.010 (requirement that lis pendens be filed), 761.020, 762.010, 762.060 and 763.010. (The current section 749 concerns actions for forgery of a trust deed on residential property.)

In 1956, Code of Civil Procedure section 409 permitted the filing of a lis pendens in connection with any action concerning real property or affecting title to it or the right of possession of it. Section 409 was repealed in 1992. (Stats. 1992, ch. 883, sec. 1.) Section 405.20 now permits the filing of a lis pendens by a party to an action who asserts such a claim.

In Silberg v. Anderson, supra, 50 Cal. 3d 205, the Supreme Court disapproved Bradley's "interest of justice" test for a statement to be protected by the litigation privilege (Id. at pp. 216-219), stating that the Bradley court had incorrectly read this test into the requirement that a privileged communication be in furtherance of the objects of the litigation. (Id. at p. 217.) The Silberg court stated that "[t]he 'furtherance' requirement was never intended as a test of a participant's motives, morals, ethics or intent." (Id. at p. 220.) However, in disapproving the "interest of justice" test, the Silberg court reaffirmed, albeit in dictum, Bradley's holding that statements to persons with no connection to a case are not covered by the litigation privilege (Id. at p. 219), and did not disapprove Bradley's generalization that "litigating in the press" is not privileged under section 47, subdivision (b). Indeed, the Silberg court observed that the "interest of justice" test was unnecessary to the decision in Bradley precisely because the communications at issue were made by and to strangers to the lawsuit, were not reasonably related to the action, and consequently were unprivileged under traditional criteria. (Id. at p. 217; cf. Susan A. v. County of Sonoma, supra, 2 Cal. App. 4th at p. 95, fn. 6.) The court observed that "republications to nonparticipants in the action are generally not privileged under section [47, subdivision (b)], and are thus actionable unless privileged on some other basis." (50 Cal. 3d at p. 219.)

Relying upon the statement in Silberg that statements to nonparticipants in litigation are not covered by the litigation privilege, the Court of Appeal in Susan A. v. County of Sonoma, supra, 2 Cal. App. 4th 88, rejected a claim that certain communications made to the general public during ongoing litigation were shielded by the litigation privilege. In Susan A., a psychologist interviewed a 14-year-old boy who was accused of attempted murder, and thereafter made statements about the boy to the press. The boy's parents sued. (Id. at pp. 92-93.) Citing Silberg, Washer and Bradley, the Susan A. court concluded the challenged statements were not covered by the litigation privilege. (Id. at pp. 93-96.) The court reached this conclusion despite a claim that the communication was made with an intent of achieving an advantage in litigation. (Id. at p. 95.) The court concluded that application of the privilege to the otherwise unprivileged communication on that ground would " 'open the door to the universally condemned "trial by press" ' " (Ibid., quoting from Kennedy v. Cannon (1962) 229 Md. 92 [182 A.2d 54, 59]) and would also contravene the rule stated in Silberg that application of the litigation privilege does not depend upon the speaker's motives, morals, ethics, or intent. (2 Cal. App. 4th at p. 96.)