How To Prove A California Litigation Privilege Defense

In California, a defense of Litigation Privilege is defined as:
Litigation privilege is an absolute privilege that protects certain communications and actions made in the context of legal proceedings from being the basis of a lawsuit for defamation, invasion of privacy, or other similar claims.
It simply means:
In some contexts, a person can say anything (or almost anything) and not be held legally liable.
There are 5 elements of the defense:
- Element 1. A defamatory statement was made. A defamatory statement is a false remark about someone that harms their reputation, suggesting that the person is untrustworthy or has done something wrong, which can lead to legal action if made publicly without a valid reason.
Facts that might support this element look like:
* The defendant publicly stated that the plaintiff was involved in criminal activities without any evidence to support the claim.
* The defendant shared false information about the plaintiff’s professional conduct during a community meeting attended by numerous individuals.
* The defendant published an article online that falsely accused the plaintiff of fraud, damaging the plaintiff’s reputation.
* The defendant repeatedly claimed that the plaintiff had been fired for misconduct, despite the plaintiff’s exemplary work record.
* The defendant sent emails to several colleagues alleging that the plaintiff was dishonest in business dealings, which were later proven to be untrue. - Element 2. The statement was made in a judicial or quasi-judicial proceeding. The statement was made during a legal process, like a court case or a similar official setting, which helps protect it from being used against the speaker in future lawsuits, as it falls under the litigation privilege defense.
Facts that might support this element look like:
* The statement in question was made during a deposition conducted as part of an ongoing civil lawsuit.
* The statement was presented as evidence during a court hearing regarding a motion to dismiss the case.
* The statement was included in a sworn affidavit submitted to the court by a party involved in the litigation.
* The statement was made by a witness while testifying under oath in front of a judge.
* The statement was part of the official court record during a scheduled trial session. - Element 3. The statement was made by litigants or other participants in the proceeding. The statement was made by people involved in the legal case, like the parties or their lawyers, which helps protect those comments from being used against them later in court.
Facts that might support this element look like:
* The statement in question was made by the defendant during a court hearing where both parties were present.
* The plaintiff’s attorney referenced the statement in their opening remarks during the trial.
* The statement was included in a legal brief submitted to the court by the defendant.
* The communication occurred during a deposition attended by both litigants and their legal representatives.
* The statement was made in the context of a settlement negotiation involving both parties and their attorneys. - Element 4. The statement was made to achieve the objects of the litigation. The statement was made to support the goals of the legal case, meaning it was intended to help resolve the dispute or protect the interests of the party making the statement, which is a key part of the defense known as litigation privilege.
Facts that might support this element look like:
* The statement was made during a court proceeding where both parties were present and represented by legal counsel.
* The content of the statement directly addressed the issues at stake in the litigation, aiming to clarify the facts for the judge.
* The statement was submitted as part of a formal legal document filed with the court, intended to support the client’s position.
* The speaker had a vested interest in the outcome of the litigation, as it directly affected their legal rights and obligations.
* The statement was made in response to a specific allegation raised by the opposing party, demonstrating its relevance to the case. - Element 5. The statement had some connection or logical relation to the legal action. The statement was relevant to the legal case, meaning it was related to the issues being disputed in court, which helps protect it under the Litigation Privilege Defense, allowing parties to discuss matters freely without fear of those statements being used against them later.
Facts that might support this element look like:
* The statement was made during a court proceeding related to the ongoing litigation between the parties.
* The statement directly addressed the claims and defenses raised in the lawsuit, providing context for the legal arguments presented.
* The statement was part of a written document submitted to the court as evidence in the case.
* The content of the statement was relevant to the issues being litigated, influencing the court’s understanding of the matter.
* The statement was made by a party involved in the litigation, reflecting their position on the disputed facts.
(See California Civil Code Section 47(b). Fenters v. Yosemite Chevron, 761 F. Supp. 2d 957 – Dist. Court, ED California 2010.)
If you’re in court without a lawyer and plan to assert a Defense of Litigation Privilege, it’s essential to have a Personal Practice of Law at Courtroom5. You’ll need to make critical decisions about what to file at each phase of your case and prepare legal documents that are supported by thorough legal research and a strong analysis of the facts. Our platform can help you navigate these complexities effectively.
Prove Your CA Litigation Privilege Defense
U.S. Civil Cases Only