2. The Absolute Nature of the Litigation Privilege under Section 47(2)
To effectuate its vital purposes, the litigation privilege is held to be absolute in nature. (Ribas v. Clark, supra, 38 Cal.3d at p. 364, 212 Cal.Rptr. 143, 696 P.2d 637; Albertson v. Raboff, supra, 46 Cal.2d at p. 381, 295 P.2d 405; Carden v. Getzoff (1987) 190 Cal.App.3d 907, 914, 235 Cal.Rptr. 698; Financial Corp. of America v. Wilburn, supra, 189 Cal.App.3d at p. 771, 234 Cal.Rptr. 653; McClatchy Newspapers, Inc. v. Superior Court, supra, 189 Cal.App.3d at p. 971, 234 Cal.Rptr. 702; O'Neil v. Cunningham (1981) 118 Cal.App.3d 466, 475, 173 Cal.Rptr. 422; Thornton v. Rhoden, supra, 245 Cal.App.2d at p. 86, 53 Cal.Rptr. 706.) In Albertson, Justice Traynor, speaking for the court, reasoned that the policy of encouraging free access to the courts was so important as to require application of the privilege to torts other than defamation. (Albertson v. Raboff, supra, 46 Cal.2d at p. 381, 295 P.2d 405; see Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1164, 232 Cal.Rptr. 567, 728 P.2d 1202.) Accordingly, in the years since Albertson, section 47(2) has been held to immunize defendants from tort liability based on theories of abuse of process (Drasin v. Jacoby & Myers (1984) 150 Cal.App.3d 481, 197 Cal.Rptr. 768; Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121, 185 Cal.Rptr. 92; Asia Investment v. Borowski (1982) 133 Cal.App.3d 832, 184 Cal.Rptr. 317; Umansky v. Urquhart (1978) 84 Cal.App.3d 368, 148 Cal.Rptr. 547; Twyford v. Twyford (1976) 63 Cal.App.3d 916, 134 Cal.Rptr. 145; Younger v. Solomon (1974) 38 Cal.App.3d 289, 113 Cal.Rptr. 113; Thornton v. Rhoden, supra, 245 Cal.App.2d 80, 99, 53 Cal.Rptr. 706; but see Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc., supra, 42 Cal.3d at p. 1165, 232 Cal.Rptr. 567, 728 P.2d 1202), intentional infliction of emotional distress (Ribas v. Clark, supra, 38 Cal.3d 355, 212 Cal.Rptr. 143, 696 P.2d 637; Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121, 185 Cal.Rptr. 92; Lerette v. Dean Witter Organization, Inc., supra, 60 Cal.App.3d 573, 131 Cal.Rptr. 592; Pettitt v. Levy, supra, 28 Cal.App.3d 484, 104 Cal.Rptr. 650; Kachig v. Boothe, supra, 22 Cal.App.3d 626, 99 Cal.Rptr. 393; Agostini v. Strycula (1965) 231 Cal.App.2d 804, 42 Cal.Rptr. 314), intentional inducement of breach of contract (Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121, 185 Cal.Rptr. 92; Agostini v. Strycula, supra, 231 Cal.App.2d 804, 42 Cal.Rptr. 314), intentional interference with prospective economic advantage (Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121, 185 Cal.Rptr. 92), negligent misrepresentation (Pettitt v. Levy, supra, 28 Cal.App.3d 484, 104 Cal.Rptr. 650), invasion of privacy (Ribas v. Clark, supra, 38 Cal.3d 355, 212 Cal.Rptr. 143, 696 P.2d 637), negligence (Pettitt v. Levy, supra, 28 Cal.App.3d 484, 104 Cal.Rptr. 650) and fraud (Carden v. Getzoff, supra, 190 Cal.App.3d 907, 235 Cal.Rptr. 698; Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642-643, 226 Cal.Rptr. 694; Portman v. George McDonald Law Corp. (1979) 99 Cal.App.3d 988, 989-990, 160 Cal.Rptr. 505; Pettitt v. Levy, supra, 28 Cal.App.3d 484, 104 Cal.Rptr. 650; Kachig v. Boothe, supra, 22 Cal.App.3d 626, 99 Cal.Rptr. 393). The only exception to application of section 47(2) to tort suits has been for malicious prosecution actions. (Ribas v. Clark, supra, 38 Cal.3d at p. 364, 212 Cal.Rptr. 143; Kilgore v. Younger, supra, 30 Cal.3d at p. 778, 180 Cal.Rptr. 657, 640 P.2d 793; Carden v. Getzoff, supra, 190 Cal.App.3d at p. 913, 235 Cal.Rptr. 698; Pettitt v. Levy, supra, 28 Cal.App.3d at p. 489, 104 Cal.Rptr. 650.) Malicious prosecution actions are permitted because "[t]he policy of encouraging free access to the courts ... is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied." (Albertson v. Raboff, supra, 46 Cal.2d at p. 382, 295 P.2d 405.)
That the privilege is absolute is also confirmed by the statutory language. As amended in 1927 [FN4] by the addition of the "divorce proviso," section 47(2) provided that an allegation involving corespondents in pleadings and affidavits filed in divorce actions is not privileged unless stated under oath, without malice, on reasonable grounds. (Stats.1927, ch. 866, s 1, p. 1881.) [FN5] By negative implication, therefore, statements published in proceedings other than divorce actions may be malicious and still fall within the mantle of protection provided by the privilege. Were it otherwise, the "without malice" language in the "divorce proviso" would be mere surplusage. Since we presume that the Legislature does not engage in idle acts (Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805, 249 P.2d 241; General American Transportation Corp. v. State Bd. of Equalization (1987) 193 Cal.App.3d 1175, 1181, 238 Cal.Rptr. 865), it must be concluded that the "without malice" requirement applies only to those allegations against corespondents published in the pleadings and affidavits filed in dissolution proceedings and that, otherwise the Legislature intended section 47(2) to apply to all publications, irrespective of their maliciousness.
[FN5] Under our modern dissolution of marriage laws, where fault is no longer a relevant issue, "the divorce proviso" may well be an unnecessary anachronism. In any event, however, our analysis of legislative intent is not thereby affected.
The "interest of justice" test appears to have originated with Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d 818, 106 Cal.Rptr. 718. The Bradley court stated: "[I]n determining whether or not the defamatory publication should be accorded an absolute privilege, special emphasis must be laid on the requirement that it be made in furtherance of the litigation and to promote the interest of justice. Only if this requirement has been satisfied, is it appropriate for the courts to define liberally the scope of the term 'judicial proceeding' and the persons who should be regarded as litigants or other participants." (Id. at p. 826, 106 Cal.Rptr. 718, italics in original.)
Thus, the Bradley court read into the requirement that the communication be made "to achieve the objects of the litigation" the additional requirement that the communication must have also been made for the purpose of promoting the "interest of justice." Actually, the Bradley court's announcement of the "interest of justice" test was wholly unnecessary to its decision. The court had already concluded that both the communicator and the communicatee were strangers to the action (neither parties, prospective witnesses nor attorneys in the action), and that the communication was not reasonably related to the action. Either of these conclusions was ample basis for holding that the communication was not privileged without resort to any "interest of justice" test.
Moreover, while the added moral consideration injected by the Bradley court may seem attractive, on further reflection it is seen to be a drastic departure from precedent and largely destructive of the principal purpose of the litigation privilege. It would permit derivative tort suits in many, if not most, cases on the ground that an otherwise privileged communication was not made for the purpose of promoting justice, a charge easily and quickly made by an adversary.
The "interest of justice" test, as adopted in Bradley, has been criticized and indeed rejected in a number of decisions by sister Courts of Appeal. (ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 262 Cal.Rptr. 773; Green v. Uccelli, supra, 207 Cal.App.3d 1112, 255 Cal.Rptr. 315; Financial Corp. of America v. Wilburn, supra, 189 Cal.App.3d 764, 234 Cal.Rptr. 653; McClatchy Newspapers, Inc. v. Superior Court, supra, 189 Cal.App.3d 961, 234 Cal.Rptr. 702; O'Neil v. Cunningham, supra, 118 Cal.App.3d 466, 173 Cal.Rptr. 422.)
Nevertheless, a number of Court of Appeal decisions appear to have embraced the "interest of justice" requirement, either linguistically or substantively. (See Kinnamon v. Staitman & Snyder, supra, 66 Cal.App.3d at p. 897, 136 Cal.Rptr. 321; Earp v. Nobmann, supra, 122 Cal.App.3d at pp. 284-285, 175 Cal.Rptr. 767; Barbary Coast Furniture Co. v. Sjolie, supra, 167 Cal.App.3d at p. 334, 213 Cal.Rptr. 168; McKnight v. Faber, supra, 185 Cal.App.3d at p. 650, 230 Cal.Rptr. 57; Fuhrman v. California Satellite Systems, supra, 179 Cal.App.3d at p. 421, 231 Cal.Rptr. 113.)
We also observe, however, that in many of the decisions purporting to utilize the "interest of justice" test, the court could have reached the same result, no privilege, on the basis of the absence of one of the traditionally recognized factors. (See, e.g. McKnight v. Faber, supra, 185 Cal.App.3d at p. 650, 230 Cal.Rptr. 57 [the immunity of section 47(2) does not apply to conduct but is limited to communications]; Fuhrman v. California Satellite Systems, supra, 179 Cal.App.3d at p. 421, 231 Cal.Rptr. 113 [communication not made in the course of a judicial proceeding]; Earp v. Nobmann, supra, 122 Cal.App.3d at p. 285, 175 Cal.Rptr. 767 [factual question existed as to whether the potential lawsuit was actually contemplated].)
We conclude that the well-intentioned addition of the "interest of justice" test must be rejected. A rule that an otherwise privileged communication is not privileged under section 47(2) unless made for the purpose of promoting the "interest of justice" is wholly inconsistent with the numerous cases in which fraudulent communications or perjured testimony have nevertheless been held privileged. (E.g., Carden v. Getzoff, supra, 190 Cal.App.3d at p. 915, 235 Cal.Rptr. 698; Steiner v. Eikerling, supra, 181 Cal.App.3d 639, 642- 643, 226 Cal.Rptr. 694; Portman v. George McDonald Law Corp., supra, 99 Cal.App.3d 988, 989-990, 160 Cal.Rptr. 505; Pettitt v. Levy, supra, 28 Cal.App.3d 484, 104 Cal.Rptr. 650; Kachig v. Boothe, supra, 22 Cal.App.3d 626, 99 Cal.Rptr. 393.) Obviously, such a test would also be contrary to the decisions in which liability for abuse of process is held precluded by the privilege. (Drasin v. Jacoby & Myers, supra, 150 Cal.App.3d 481, 197 Cal.Rptr. 768; Rosenthal v. Irell & Manella, supra, 135 Cal.App.3d 121, 185 Cal.Rptr. 92; Asia Investment v. Borowski, supra, 133 Cal.App.3d 832, 184 Cal.Rptr. 317; Umansky v. Urquhart, supra, 84 Cal.App.3d 368, 148 Cal.Rptr. 547; Twyford v. Twyford, supra, 63 Cal.App.3d 916, 134 Cal.Rptr. 145; Younger v. Solomon, supra, 38 Cal.App.3d 289, 113 Cal.Rptr. 113.) One of the two necessary elements of that tort is an ulterior purpose. (Templeton Feed & Grain v. Ralston Purina Co. (1968) 69 Cal.2d 461, 72 Cal.Rptr. 344, 446 P.2d 152.) Finally, endorsement of the "interest of justice" requirement would be tantamount to the exclusion of all tortious publications from the privilege, because tortious conduct is invariably inimical to the "interest of justice." Thus, the exception would subsume the rule.
It is thus clear that the Court of Appeal in the instant case lacked persuasive authority to hold defendant's communications unprivileged on the theory they may not have been made for the purpose of advancing the "interest of justice." The salutary policy reasons for an absolute privilege supersede individual litigants' interests in recovering damages for injurious publications made during the course of judicial proceedings.
We recognize, as have applicable precedents, that the disallowance of derivative tort actions based on communications of participants in an earlier action necessarily results in some real injuries that go uncompensated. But, as stated in Kachig v. Boothe, supra, 22 Cal.App.3d at page 641, 99 Cal.Rptr. 393, quoting Prosser, Law of Torts (3d ed. 1964) page 797, that is the "price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say."
We observe, however, that in a good many cases of injurious communications, other remedies aside from a derivative suit for compensation will exist and may help deter injurious publications during litigation. Examples of these remedies include criminal prosecution for perjury (Pen.Code, s 118 et seq.) or subornation of perjury (Pen.Code, s 653f, subd. (a)); criminal prosecution under Business and Professions Code, section 6128; [FN6] and State Bar disciplinary proceedings for violation of Business and Professions Code, section 6068, subdivision (d). [FN7] Finally, republications to nonparticipants in the action are generally not privileged under section 47(2), and are thus actionable unless privileged on some other basis.
[FN7] That section and subdivision impose a duty on attorneys to "employ ... such means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by any artifice or false statement of fact or law."
It remains only to apply the usual four-part test to husband's fifth cause of action, to determine if defendant's statements as to the psychologist's neutrality and independence were privileged under section 47(2).
As alleged in the complaint, the stipulation to retain a psychologist, and the discussion as to the specific psychologist to retain, occurred in the course of the marital dissolution proceeding. Defendant's statements regarding Dr. Adler's suitability were made by a participant, i.e., the attorney for a party. They were "reasonably related" to the action because custody and visitation arrangements are integral to all marital dissolution proceedings in which children are involved. (See s 4600 et seq.) Moreover, where custody and visitation arrangements are contested issues, the state requires that mediation be conducted by a qualified counselor (s 4607; Code Civ.Proc., s 1745) who is directed to perform an evaluation and formulate recommendations if not sought voluntarily by the parties to the dissolution.
The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action. A good example of an application of the principle is found in the cases holding that a statement made in a judicial proceeding is not privileged unless it has some reasonable relevancy to the subject matter of the action. (E.g. Washer v. Bank of America (1943) 21 Cal.2d 822, 136 P.2d 297; Carpenter v. Ashley (1906) 148 Cal. 422, 83 P. 444; Irwin v. Newby (1929) 102 Cal.App. 110, 282 P. 810, 283 P. 370.) The "furtherance" requirement was never intended as a test of a participant's motives, morals, ethics or intent. (See Financial Corp. of America v. Wilburn, supra, 189 Cal.App.3d at p. 777, 234 Cal.Rptr. 653; Thornton v. Rhoden, supra, 245 Cal.App.2d at pp. 93-94, 53 Cal.Rptr. 706.)
Accordingly, it is clear that defendant's statements furthered the objects of the litigation and fall within the scope of the litigation privilege. The statements were made in the context of a judicial proceeding, were logically related to the action, played an integral role in the proceeding, and were made by one of the participants about an authorized participant. The privilege of section 47(2) plainly applies. (Green v. Uccelli, supra, 207 Cal.App.3d at p. 1124, 255 Cal.Rptr. 315; Walsh v. Bronson, supra, 200 Cal.App.3d at p. 269, 245 Cal.Rptr. 888.)
For the foregoing reasons, the judgment of the Court of Appeal is reversed as to the fifth cause of action with directions to reinstate the order of dismissal issued by the trial court as to all causes of action asserted against defendant Anderson.
LUCAS, C.J., and MOSK, BROUSSARD, PANELLI, EAGLESON and KENNARD, JJ., concur.