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Cassidy v. Gaiser5/3/2005
ise, this court held: "Allowing a party at fault to evade responsibility for its wrongful conduct on the coattails of a statutory privilege enjoyed by someone else conflicts with" two fundamental principles governing tort liability. (Id. at p. 1305.) Plaintiffs contend Sharon is trying to evade responsibility on the coattails of Konig and Muratore.
In Wise a pharmacy revealed plaintiff's medical information to her husband without her authorization in the midst of an acrimonious separation. The husband then used the information in their dissolution proceeding and a DMV proceeding. This court held the litigation privilege applied to the husband's use of the information, but not to the pharmacy's tortious conduct in revealing the information to the husband. (Wise, supra, 83 Cal.App.4th at pp. 1302-1307.) The pharmacy's disclosure of the confidential information was not privileged because it did not satisfy the elements of the Silberg test: it was not made in the course of a judicial proceeding; the pharmacy was not a participant; the disclosure was not made to further an object of the litigation; and there was no logical relation to any ongoing or contemplated proceeding. (Id. at p. 1304.) This court found "no persuasive reason to confer section 47(b) immunity to one who wrongfully reveals confidential information simply because the disclosure subsequently becomes a hot potato in the course of court litigation or administrative hearings." (Id. at p. 1307.)
Wise, supra, 83 Cal.App.4th 1296 is distinguishable. Sharon's disclaimer, unlike the pharmacy's disclosure in Wise, was not a communication made completely separate from the judicial proceedings. Rather, plaintiffs alleged Sharon took her actions with respect to the disclaimer as part of a conspiracy that included the detainer proceedings. In short, Sharon was a participant because plaintiffs alleged she was in her role as a coconspirator.
Plaintiffs next contend that Sharon's answers to special interrogatories establish that she did not prepare the disclaimer for use in litigation. Plaintiffs rely on Sharon's responses that Timothy did not solicit the disclaimer and that she added language to the disclaimer at the request of her own attorneys. Contrary to Sharon's argument, this evidence was presented to the court in opposition to her motion for summary judgment. However, this evidence does not defeat the litigation privilege by establishing the disclaimer was not prepared for litigation. Timothy or his attorneys did not have to solicit the disclaimer; it was enough that Sharon acted pursuant to the alleged conspiracy.
Plaintiffs argue that the purpose of the litigation privilege is not furthered by applying it to Sharon. We disagree. The purpose of the litigation privilege is to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation. (Silberg v. Anderson, supra, 50 Cal.3d at p. 214.) These purposes are served by giving Sharon immunity for her communications made during the detainer proceedings.
Plaintiffs next contend that the litigation privilege does not apply because Sharon had a contractual relationship with plaintiffs based on the occupancy agreement. They assert the disclaimer represents wrongful performance of the occupancy agreement. Plaintiffs, however, did not allege breach of contract against Sharon. The conspiracy cause of action sounds in tort not contract, so the litigation privilege applies. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 40.)
Finally, plaintiffs contend the trial court erred in granting summary judgment because it overlooked and ignored the
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