Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Friday, March 24, 2006

Case Law Development: Litigation Privilege Bars Invasion of Privacy Claim Against Witness in Family Law Proceeding

The litigation privilege protects litigants, attorneys and witnesses from liability for their statements in court proceedings.  The doctrine is vital in family law litigation given its regular disclosure of a broad range of negative, private information about individuals.  The California Court of Appeals has reaffirmed the strength of the privilege in this case involving a juvenile who sued the county and a supervisor of the county's victim witness program, alleging invasion of his state constitutional right to privacy, libel, and negligent infliction of emotional distress. The supervisor had written a letter that referred to a child molestation accusation against the juvenile, which was published in a family law proceeding concerning visitation rights regarding the juvenile's family members.

On a motion for nonsuit, the trial court found that the letter was protected by the litigation privilege and dismissed all causes of action except the invasion of privacy cause of action. The  California Court of Appeal reversed. The court concluded that the supervisor's letter was absolutely privileged and that the trial court should have dismissed the entire case. The letter constituted a communication because it was made in the context of a judicial proceeding, i.e., a pending family law case. The supervisor, who was the custodian of information relevant to the action, was a witness or participant in the family law proceeding. Finally, the letter furthered the objects of the litigation, since the information it conveyed had relevance to the visitation dispute. The court concluded that the trial court was correct that the privilege applied, but incorrect in its view that a privacy claim invoking the California Constitution could trump it. Reviewing the prior case law that had consistently held that the privilege barred all causes of action except malicious prosecution, including invasion of privacy, the court concluded that constitutional invasion of privacy was no different.  "We find it unlikely that the Supreme Court would now find a "valid basis" for distinguishing between constitutional privacy violations and those rooted in statutory or case law. Indeed, recognition of such a distinction would allow a plaintiff to easily overcome the privilege on any privacy claim by simply inserting the adjective "constitutional" into his or her pleadings and jury instructions."

Jacob B. v. County of Shasta, 137 Cal. App. 4th 225; 2006 Cal. App. LEXIS 282 (March 1, 2006)
Opinion on the web (last visited March 22, 2006 bgf)

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