Silberg v. Anderson (Cal. Supreme Court) There is no "interest of justice" requirement for the "litigation privilege" to apply.

Silberg v. Anderson (1990) 50 Cal.3d 205 (1990)

A psychologist who provided an Evid. Code §730 Evaluation in a family law custody proceeding was denied immunity under Civil Code §47 (litigation privilege) by the trial court and on appeal, based on an "interest of justice" exception, a concept originating with Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal. App.3d 818. [FN 1]

Review was granted "to resolve a conflict in decisions within the districts regarding the nature and scope of the "litigation privilege" found in Civil Code §47, subd. 2,  Specifically disapproved the "interest of justice" exception found in Bradley and subsequent cases. e.g.,  Kinnamon v. Straitman & Snyder (1977) 66 Cal. App.3d 893, 897 ; Earp v. Nobmann (1981) 122 Cal. App.3d 270, 284; Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal. App.3d 319, 333; Fuhrman v. California Satellite Systems (1986) 179 Cal. App.3d 408, 421; McKnight v. Faber (1986) 185 Cal. App.3d 639, 649.

In determining there is no "interest of justice" exception the court considereed the "usual formulation" to determine whether the "litigation privilege should apply. 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; and (4) that have some connection or logical relation to the action. [FN 2]

The court rationalized its decision the court found that "[T]he [third] requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the [fourth] 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."

The supreme Court has spoken, the interest of justice exception is no longer available, immunity is absolute.

There are a few noteworthy decisions finding no privilege based on the "usual formulation", to include:

»»    McKnight v. Faber, supra, 185 Cal. App.3d at p. 650 [the immunity of section 47(2) does not apply to conduct but is 218 limited to communications];

»»    Fuhrman v. California Satellite Systems, supra, 179 Cal. App.3d at p. 421 [factual question existed as to whether the potential lawsuit was actually contemplated];

»»    Earp v. Nobmann, supra, 122 Cal. App.3d at p. 285 [communication had no logical relation to the action].)

»»    Parkes v. County of San Diego, 345 F. Supp. 2d 1071 [Immunity is not available to Social workers under Civil Code § 47. if precluded Government Code § 820.21, under which privdes "[N]otwithstanding any other provision of the law" social workers have no immunity for perjury, fabrication of evidence, failure to disclose exculpatory evidence and obtaining testimony by duress, if committed with malice, defining malice as conduct intended to cause injury or despicable conduct that is carried on with a "willful and conscious disregard of the rights or safety of others."

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FN 1     Bradley has since been followed by  Kinnamon v. Straitman & Snyder (1977) 66 Cal. App.3d 893, 897 ; Earp v. Nobmann (1981) 122 Cal. App.3d 270, 284; Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal. App.3d 319, 333; Fuhrman v. California Satellite Systems (1986) 179 Cal. App.3d 408, 421; McKnight v. Faber (1986) 185 Cal. App.3d 639, 649.

FN 2    See Green v. Uccelli (1989) 207 Cal. App.3d 1112, 1124; Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal. App.3d 1513, 1521; Walsh v. Bronson (1988) 200 Cal. App.3d 259, 269; Financial Corp. of America v. Wilburn (1987) 189 Cal. App.3d 764, 772-773; Chen v. Fleming (1983) 147 Cal. App.3d 36, 41;   Hagendorf v. Brown (9th Cir.1983) 699 F.2d 478, 480.)