Litigation Privilege Exception: Statement Concerning Third Party in Dissolution Proceedings

  Civil Code sections 47-48 codify the litigation privilege in California. It provides attorneys, parties, witnesses, and other participants immunity from liability for making alleged defamatory statements so long as they relate to legislative, judicial, or other official proceedings. The purpose of the 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.

  The privilege is not absolute, however, and contains several exceptions. One such exception concerns statements made in any pleading or declaration filed in a marital dissolution or separation proceeding which concerns a person against whom no affirmative relief is sought, i.e., a third party. Such statements are not privileged unless the pleading or declaration is: 1) verified; 2) made without malice; 3) made by one having reasonable and probable cause to belief its truth; and 4) material and relevant to the issues presented in the action.

  The recently published opinion in Holland v. Jones affirms that the exception to the litigation privilege provided in Civil Code section 47(b)(1) to statements made in a marital dissolution proceeding applies only to statements made against a third party, and not under the circumstances where the statements are made against a party to the proceedings and against whom affirmative relief is sought.

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