Divorce litigation can get emotional. Frequently declarations are lodged in the court file, and testimony is elicited in court that present the ex-spouse in a negative light. Many times what is said is hurtful by design. Frequently the target of the attack is offended, even to the point of wanting revenge. Other times the target see the attack as an opportunity to mount a counter offensive based on the alleged falsity of the statements. Quite frequently the target wants to sue the ex for libel because of the alleged falsity of the statement. Guess what? You probably cannot sue.
An unpublished opinion out of Los Angeles County helps us understand how limited the opportunity is to redress hurtful statements made in court.
Michael Holland was unhappy about some statements that his ex Kelly Jones made about him in court filings in their divorce case. He sued her. His lawsuit for libel got thrown out by the court. He appealed. He lost on appeal, and the Court of Appeals explains why.
“The litigation privilege of Civil Code section 47, subdivision (b) . . . , generally protects from tort liability any publication made in connection with a judicial proceeding.” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 952.) “‘The usual formulation is 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.’ [Citation.]” (Id. at p. 955.) “‘The purposes of section 47, subdivision (b), are to afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments, and to avoid unending litigation.’ [Citation.] Another purpose is to ‘promote effective judicial proceedings’ by encouraging full communication with the courts. [Citation.] To further these purposes, the privilege has been broadly applied. It is absolute and applies regardless of malice. [Citations.]” (Id. at pp. 955-956.). . . .
Jones’s statements, whether true or false or made with malice or without, in her declaration filed in the marital dissolution proceedings, on which Holland bases his defamation cause of action against her, fall squarely within the litigation privilege. They are communications made in a judicial proceeding by a litigant to achieve the objects of the litigation with some connection to the action. Jones filed the declaration in support of an application wherein she was seeking affirmative relief from Holland, including modification of child custody and support orders, in the context of her marital dissolution proceeding. The exception to the litigation privilege . . . simply does not apply to Jones’s statements. That exception may under certain circumstances apply to statements in an affidavit filed in a marital dissolution proceeding when they are “made of or concerning a person by or against whom no affirmative relief is prayed in the action . . . .” (Civ. Code, § 47, subd. (b)(1).) Jones, however, made the statements about Holland, who is not a person against whom no affirmative relief is prayed in the action. Rather, Holland was a party to the action and the very person from whom Jones was seeking relief, namely, a change in the child custody and support orders. Thus, contrary to the appellate division’s decision, the exception does not apply, and the litigation privilege bars Holland’s defamation action against Jones. . . .
Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.
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