Opinion
GEORGE, J. In this case we must decide whether a witness who testifies at a deposition held in connection with a private, contractual arbitration proceeding is subject to being sued in a tort action on the basis of statements made in the course of such testimony, or instead, like any witness in a court proceeding, is immunized from tort liability by virtue of the “litigation privilege” embodied in Civil Code section 47, subdivision [638](b) (hereafter section 47(b)).1 As we shall explain, in view of the purpose and history of the litigation privilege and the numerous California decisions interpreting and applying the relevant statutory provision, we conclude that statements made in the course of a private, contractual arbitration proceeding are protected by the litigation privilege.
I
The appeal in this case is from a judgment of dismissal entered after the sustaining of a general demurrer. Accordingly, in setting forth the relevant facts for purposes of our review, we are guided by the familiar rules applicable in this setting. “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.]” (Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187].)
Plaintiffs are the mother, siblings and estate of DeWanda Atkinson, who died in March 1984, at 16 years of age, from hepatitis. Plaintiffs contend that DeWanda contracted this disease as a side effect of a drug, Isoniazid (also referred to as INH), that was prescribed for her because of her exposure to tuberculosis, and that she had ingested on a daily basis during the several months preceding her death.
After DeWanda’s death, plaintiffs instituted a wrongful death action in San Mateo County Superior Court against DeWanda’s health plan and physicians (hereafter referred to collectively as Kaiser), asserting that Kaiser had been negligent in prescribing and monitoring DeWanda’s tuberculosis medication and that such negligence was the cause of DeWanda’s death. Early in 1985, the parties to the civil proceedings stipulated that the action was subject to mandatory arbitration under the contractual provisions of the applicable Kaiser medical and hospital service agreement, and also stipulated that the civil action should be stayed pending arbitration. In view of the stipulation, the superior court, in March 1985, entered an order staying further proceedings in the civil action pending completion of the arbitration.
[639]Sometime thereafter, Kaiser retained, as a medical expert, Dr. Milton Conliffe, the defendant in the proceeding now before us, to provide medical information regarding DeWanda, including his opinion as to the cause of her death.
The arbitration hearing on plaintiffs’ claim against Kaiser began in October 1989. In December 1989, during a break in the hearing, plaintiffs scheduled a deposition with Dr. Conliffe, requesting that he produce documents relating to his review of DeWanda’s case, including articles or writings he had reviewed, consulted, prepared, referred to, or relied upon in his work on the case.
When he appeared for his deposition, Dr. Conliffe produced only his personal resume. In his testimony at the deposition, Dr. Conliffe stated it was his opinion that DeWanda’s death had resulted from viral hepatitis, rather than nonviral hepatitis, and therefore that the use of Isoniazid did not contribute to her death. In response to questions at the deposition, Dr. Conliffe also testified he had reviewed the articles and literature submitted by plaintiffs, but denied recalling or being aware of any medical literature that attributed hepatitis to the use of Isoniazid. When asked specifically about his own contributions to publications, Dr. Conliffe stated only that he had contributed certain “epidemiological information” to an article on “toxicity.”
The complaint does not allege that Dr. Conliffe testified at the arbitration hearing itself or that his deposition testimony was introduced at that hearing. The complaint does allege, however, that Kaiser’s position at the arbitration hearing was consistent with Dr. Conliffe’s deposition testimony, namely, that DeWanda’s death was caused by a form of viral hepatitis and was not drug induced. At the conclusion of the arbitration proceeding in January 1990, a majority of the arbitrators found that, although Kaiser had been negligent in the care and treatment of DeWanda, plaintiffs had failed to prove that the cause of her death was Isoniazid-induced hepatitis. On that basis, the arbitrators ruled in favor of Kaiser.
Sometime after the arbitrators had rendered their decision, plaintiffs’ attorney discovered that in September 1989, three months prior to Dr. Conliffe’s deposition, an article had been published in a medical journal by another physician, reviewing a number of hepatitis deaths in California attributed to Isoniazid, and that Dr. Conliffe, himself, had contributed information concerning DeWanda’s case to the author of the article, allegedly as an example of Isoniazid-induced death. As noted above, the complaint alleged Dr. Conliffe did not disclose the existence of this article in testifying [640]at the deposition, and plaintiffs claimed the article demonstrated that Dr. Conliffe knowingly and intentionally provided false testimony at his deposition.
In May 1990, plaintiffs filed a petition in Alameda County Superior Court seeking to vacate the arbitration award. While that matter was pending, plaintiffs, in August 1990, filed the present separate tort action in Alameda County Superior Court. The two actions, along with the initial action filed by plaintiffs against Kaiser in 1984, were joined in a coordination proceeding (Cal. Rules of Court, rule 1501 et seq.) before the San Mateo County Superior Court. From the record before us, it appears that plaintiffs’ petition to vacate the arbitration award has remained in abeyance pending resolution of the present matter.
In their initial complaint in the present tort action, plaintiffs, as a result of misconduct alleged to have occurred in the arbitration proceeding, sought to recover damages against Kaiser, Kaiser’s attorneys in the arbitration action, and the neutral arbitrator who presided over the arbitration proceeding, but did not name Dr. Conliffe as a defendant. In October 1990, plaintiffs filed a first amended complaint in the action, setting forth a cause of action against Dr. Conliffe on a theory of “concealment and suppression of evidence.” After Dr. Conliffe demurred to the first amended complaint, plaintiffs filed additional amendments to the complaint, adding causes of action against Dr. Conliffe for negligence, intentional and negligent misrepresentation, suppression of fact, civil conspiracy, breach of contract, and intentional infliction of emotional distress. Dr. Conliffe again demurred, asserting that his deposition testimony was privileged under section 47(b). Sustaining Dr. Conliffe’s' demurrer without leave to amend, the trial court dismissed the action against him with prejudice.
On appeal, the Court of Appeal reversed, concluding that the litigation privilege embodied in section 47(b) does not apply to a witness’s testimony or to other statements made in the course of a private contractual arbitration proceeding, but only to testimony and statements made in a court proceeding. Accordingly, the Court of Appeal held that plaintiffs’ action against Dr. Conliffe should be permitted to go forward to trial. Because of the importance of the issue, we granted review, limiting the issue to be argued before this court to the question “whether communications in connection with private arbitration proceedings are protected by the litigation privilege.”
II
Under the current provisions of section 47(b), the Legislature has accorded an absolute privilege or immunity to statements made in a number of [641]contexts: in any (1) legislative proceeding, (2) judicial proceeding, (3) other official proceeding authorized by law, or (4) proceeding authorized by law and reviewable by writ of mandate.2 Although Dr. Conliffe argues that statements made in the course of a private, contractual arbitration proceeding properly can be viewed as falling within several of the subsections of section 47(b), he contends primarily that such statements come within the aegis of section 47(b)(2), which provides an absolute privilege to statements made in “any judicial proceeding”—the provision more commonly referred to as the “litigation privilege.”
In Silberg v. Anderson (1990) 50 Cal.3d 205 [266 Cal.Rptr. 638, 786 P.2d 365] (Silberg), we had occasion to undertake a rather extensive examination of the nature and scope of the litigation privilege (which, at the time, was designated section 47, subdivision (2) [hereafter section 47(2)]).3 We began our discussion in Silberg with a general overview of the application of the privilege: “In furtherance of the public purposes it is designed to serve, the privilege prescribed by section 47(2) has been given broad application. Although originally enacted with reference to defamation [citation], the privilege is now held applicable to any communication, whether or not it amounts to a publication [citations], and all torts except malicious prosecution. [Citations.] Further, it applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved. [Citations.]” (50 Cal.3d at pp. 211-212, italics added.)
We then proceeded to set forth the established parameters of the litigation privilege: “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 [has] some connection or logical relation to the action. [Citations.]” (Silberg, supra, 50 Cal.3d at p. 212, italics added.)
After thus briefly summarizing the established scope and elements of the privilege, we went on in Silberg to discuss at some length the fundamental purposes served by the privilege. We explained: “The principal purpose of [642]section 47(2) is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.] []Q Section 47(2) promotes the effectiveness of judicial proceedings by encouraging ‘open channels of communication and the presentation of evidence’ in judicial proceedings. [Citation.] . . . Such open communication is ‘a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings.’ [Citation.] Since the ‘external threat of liability is destructive of this fundamental right and inconsistent with the effective administration of justice’ [citation], courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings.” (Silberg, supra, 50 Cal.3d at p. 213.)
Noting that the United States Supreme Court, in Briscoe v. LaHue (1983) 460 U.S. 325, 333 [75 L.Ed.2d 96, 106, 103 S.Ct. 1108], had echoed these same policy considerations in describing the purposes of the absolute privilege accorded witnesses at common law, we observed in Silberg that California’s statutory litigation privilege reflected a legislative determination that “witnesses should be free from the fear of protracted and costly lawsuits which otherwise might cause them either to distort their testimony or refuse to testify altogether. [Citations.]” (Silberg, supra, 50 Cal.3d at p. 214.)4
Furthermore, we went on in Silberg to point out that the litigation privilege serves a very important additional purpose, namely, ensuring the integrity and the finality of the ultimate resolution of the controversy that has been reached through the litigation process. We explained in this regard: [643]“[I]n immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result. [Citations.]...[][] For our judicial system to function, it is necessary that litigants assume responsibility for the complete litigation of their cause [of action] during the proceedings. To allow a litigant to attack the integrity of evidence after the proceedings have concluded, except in the most narrowly circumscribed situations, such as extrinsic fraud, would impermissibly burden, if not inundate, our justice system. [Citations.]” (Silberg, supra, 50 Cal.3d at p. 214.)5
In light of the purposes served by the litigation privilege, we ultimately held in Silberg that, contrary to a line of prior Court of Appeal decisions, a plaintiff could not avoid the effect of the privilege by alleging and establishing that a communication was not made for the purpose of promoting the “interest of justice.” (Silberg, supra, 50 Cal.3d at pp. 216-219.)
It is apparent, upon even brief reflection, that the purposes of the litigation privilege, as described in Silberg, strongly support application of the privilege to a witness who testifies in the course of a private, contractual arbitration proceeding. Because such a proceeding is designed to serve a function analogous to—and typically to eliminate the need to resort to—the court system (see, e.g., Blanton v. Womancare, Inc. (1985) 38 Cal.3d 396, 402, fn. 5 [212 Cal.Rptr. 151, 696 P.2d 645, 48 A.L.R.4th 109]), the need for an absolute privilege to foster the giving of complete and truthful testimony is as vital in the private contractual arbitration setting as it is in a court proceeding. (See, e.g., Corbin v. Washington Fire and Marine Insurance Co. (D.S.C. 1968) 278 F.Supp. 393, 397, affd. 398 F.2d 543.) Furthermore, the risk that a witness’s fear of potential liability either will deter the witness from testifying voluntarily at all, or in as candid and complete a manner as is essential to the truthseeking mission of the process, is as great in the arbitration setting as in a court proceeding. (See, e.g., Sturdivant v. Seaboard Service System, Ltd. (D.C.App. 1983) 459 A.2d 1058, 1059.) Moreover, [644]because a witness may be compelled to testify in an arbitration proceeding as well as in a court proceeding (see Code Civ. Proc., §§ 1282.6 [subpoenas], 1283 [depositions]), the unfairness of subjecting a witness to a potentially burdensome tort action on the basis of testimony he or she legally is obligated to provide is as significant a problem in the arbitration setting as in a court proceeding.
Finally, the fundamental interest in protecting the integrity and finality of dispute resolution from “an unending roundelay of litigation” (Silberg, supra, 50 Cal.3d at p. 214) unquestionably is as applicable in the arbitration context as in a court proceeding. Indeed, as we emphasized in our recent decision in Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 10 [10 Cal.Rptr.2d 183, 832 P.2d 899], the importance of ensuring the finality of the arbitrator’s decision frequently is a principal impetus for “the parties’ choice of an arbitral forum over a judicial one. The arbitrator’s decision should be the end, not the beginning, of the dispute.” Moreover, as starkly demonstrated by the facts of the present case, because a party’s right to appeal an arbitration award is extremely limited (see Moncharsh, supra, 3 Cal.4th at pp. 8-33), there is a risk in the arbitration setting, even greater than that present in the court setting, that a losing party will seek to circumvent the applicable limitations on review by filing a subsequent tort action against one or more of the participants in the arbitration proceeding on the basis of statements made in that proceeding. Although plaintiffs’ attorney suggested at oral argument that a witness or other participant in an arbitration proceeding who has been subjected to an unjustified tort action always may respond by filing a malicious prosecution action, that suggestion of a third round of lawsuits simply brings into sharp focus the “unending roundelay of litigation” (Silberg, supra, 50 Cal.3d at p. 214) invited by plaintiffs’ present lawsuit. Consequently, section 47(b)(2)’s objective of preserving the finality of dispute resolution applies with special force in the arbitration context.
Ill
Plaintiffs contend, however, that even if the purposes of the litigation privilege embodied in section 47(b)(2) support application of the privilege to statements made in contractual arbitration proceedings, the language of section 47(b)(2) precludes application of the statute to such proceedings. Plaintiffs maintain that if the litigation privilege is to be applied to private arbitration proceedings, the Legislature must amend section 47(b)(2) specifically to so provide. Plaintiffs argument rests upon the premise that the reference in section 47(b)(2) to “any . . . judicial proceeding” does not encompass private contractual arbitration proceedings. As we shall explain, plaintiffs’ argument is refuted both by the governing precedent interpreting the reach of the litigation privilege, and by the history of this privilege.
[645]A
To begin with, as is made clear in Silberg’s summary of the essential components of the litigation privilege, the reference to “any judicial proceeding” in section 47 has been interpreted in past California cases to apply, not only to court proceedings, but also to those “quasi-judicial” proceedings, such as private arbitration proceedings, that are functionally equivalent to court proceedings. (See Silberg, supra, 50 Cal.3d 205, 212 [“The usual formulation [of the litigation privilege] is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings . . . .” (Italics added).]) Although plaintiffs correctly note that the reference to “quasi-judicial proceedings” in Silberg was dictum because Silberg itself involved a statement made in the course of a court proceeding, plaintiffs are mistaken in asserting that no California decision has held directly that the section 47(b)(2) litigation privilege applies to statements made in the course of a private arbitration proceeding.
In Ribas v. Clark (1985) 38 Cal.3d 355, 364 [212 Cal.Rptr. 143, 696 P.2d 637, 49 A.L.R.4th 417]—decided five years prior to the Silberg decision—we explicitly stated: “Civil Code section 47 provides in relevant part that: ‘A privileged publication or broadcast is one made ...[][] 2. In any ... (2) judicial proceeding, or (3) in any other official proceeding authorized by law. . . .’ Plaintiff concedes, as he must, that an arbitration hearing falls within the scope of this privilege because of its analogy to a judicial proceeding.” (Italics added.) Although plaintiffs attempt to minimize the significance of this statement in Ribas by claiming that it too constitutes “dictum,” a careful review of the Ribas decision demonstrates that the stated principle was in fact an essential element of the holding in that case.
In Ribas v. Clark, supra, 38 Cal.3d 355, a couple (the Ribases) entered into a court-approved property settlement agreement in a marital dissolution proceeding in which the wife was not represented by counsel. After the final judgment of dissolution, the wife consulted a tax attorney, who advised her that the settlement had adverse tax consequences for her. When she thereafter informed her husband that she had retained an attorney, the husband immediately telephoned the attorney and a heated exchange ensued. Shortly thereafter, the wife went to the place of business of a friend (Clark), asked whether she could use the telephone to call her husband, and, at the same time, requested that Clark listen to the conversation on an extension phone. Without informing the husband, Clark did so.
The wife subsequently filed an action to set aside the dissolution, alleging that her husband had procured it by fraud. Thereafter, as we explained in [646]Ribas, “[d]uring an arbitration hearing, [Clark] testified to her recollection of the conversation on which she had eavesdropped. In particular, she stated that she heard [the husband] concede he had prevented his wife from obtaining counsel during the dissolution proceedings." (38 Cal.3d at p. 358.)
Although the arbitrator ruled in the husband’s favor, he subsequently filed a new lawsuit against his wife’s friend (Clark)—the Ribas v. Clark litigation—seeking damages for violations of criminal statutes prohibiting various forms of eavesdropping, as well as for invasion of privacy and intentional infliction of emotional distress. The trial court sustained a demurrer and dismissed the complaint, and, on appeal, the defendant Clark defended the trial court judgment on two grounds: (1) that her eavesdropping on the plaintiff husband’s telephone conversation did not violate the statutory privacy provisions in question, and (2) that, in any event, the husband was barred, by the provisions of section 47, from obtaining tort recovery against her for the damage he alleged he had suffered as a result of her testimony at the arbitration hearing regarding the overheard conversation.
After concluding initially that Clark’s eavesdropping on the husband’s telephone conversation did violate the relevant privacy statutes (Ribas v. Clark, supra, 38 Cal.3d at pp. 359-363), the court in Ribas turned to the section 47 issue, stating: “Defendant next relies on the privilege accorded to statements published in judicial proceedings. This contention has merit.” (38 Cal.3d at p. 363, italics added.) The court began its legal analysis of the privilege issue with the statement quoted above: “Civil Code section 47 provides in relevant part that: ‘A privileged publication or broadcast is one made ... []Q 2. In any ... (2) judicial proceeding, or (3) in any other official proceeding authorized by law. . . .’ Plaintiff concedes, as he must, that an arbitration hearing falls within the scope of the privilege because of its analogy to a judicial proceeding.” (Id. at p. 364, italics added.) The court then continued: “Nonetheless, [plaintiff] urges that the ‘tortious nature and purpose’ of defendant’s alleged action takes his cause of action outside the privilege of section 47 . . . .” (Ibid.)
The court in Ribas then analyzed and rejected this argument, concluding that the purpose of the “judicial proceeding” privilege supported application of the privilege to the claims brought by the plaintiff, explaining: “Underlying the privilege is the vital public policy of affording free access to the courts and facilitating the crucial functions of the finder of fact. [Citation.] ‘The resulting lack of any really effective civil remedy against perjurers is simply part of the price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say.’ (Prosser, Law of Torts (4th ed. 1971) p. 778.)” (Ribas v. Clark, supra, 38 Cal.3d at pp. 364-365.)
[647]As a result of this conclusion, the court in Ribas held: “Thus, to the extent plaintiff alleges in his complaint that he suffered actual injury solely as a result of defendant’s testimony at the arbitration hearing, his cause of action under Penal Code section 637.2 [the privacy statute] must fail.” (Ribas v. Clark, supra, 38 Cal.3d at p. 365, italics added.)
Although the court thus held that the plaintiff was barred, by the litigation privilege, from recovering any damages for any injury suffered as a result of the defendant’s testimony at the arbitration hearing, the court further held that, because the privacy statute authorized a civil award of $3,000 for each violation of the statute despite a party’s inability to prove actual injury, and because, on the facts of that case, a violation of the privacy act—the defendant’s eavesdropping—was alleged to have taken place “during a conversation with [the plaintiff’s] wife prior to, and not in the context of, any judicial proceeding” (Ribas v. Clark, supra, 38 Cal.3d at p. 365, italics added), the plaintiff in Ribas was entitled to proceed “to pursue his statutory remedy of a civil lawsuit for $3,000, even though the judicial privilege bars his recovery for the only actual damage he claims to have suffered.” (Ibid., italics added.)
As this review of the Ribas decision reveals, this court’s explicit statement in Ribas that “an arbitration hearing falls within the scope of this privilege because of its analogy to a judicial proceeding” (Ribas v. Clark, supra, 38 Cal.3d at p. 364) cannot properly be characterized as dictum, but rather was essential to the court’s holding that the plaintiff in that case was barred, by the litigation or judicial proceeding privilege, from obtaining damages for the injuries suffered as a result of the defendant’s testimony at the arbitration hearing. If the litigation privilege had not been applied to the defendant’s testimony at the arbitration hearing, the plaintiff’s recovery in that case would not have been so limited. Thus, the statement in question in Ribas constitutes a holding, not dictum.
In addition to asserting that the foregoing statement in Ribas was dictum, plaintiffs argue that the Ribas decision properly can be distinguished from the present case on the ground that the arbitration proceeding at which the defendant in Ribas had testified was a “judicial arbitration” proceeding (see Code Civ. Proc., § 1141.10 et seq.), rather than a private contractual arbitration proceeding (see Code Civ. Proc., § 1280 et seq.), and consequently that our holding in Ribas should be limited only to statements made in the course of a “judicial arbitration” proceeding.6 But the Ribas opinion does not discuss (or even disclose) whether the arbitration in that case was conducted [648]pursuant to a contractual agreement or pursuant to the “judicial arbitration” statutes, and there is absolutely nothing in Ribas to suggest that our holding in that case turned upon this point. To the contrary, the opinion’s reasoning indicates that section 47’s judicial proceedings privilege applies to any “arbitration hearing” that is functionally equivalent to a court proceeding, because of the “analogy [of such a hearing] to a judicial proceeding.” (38 Cal.3d at p. 364.) Thus, contrary to plaintiffs’ claim, we conclude that this court’s decision in Ribas constitutes a direct holding that, as a general matter, the section 47 privilege applies to all arbitration proceedings.
This understanding of the Ribas decision, that it is not limited to “judicial arbitration” proceedings, is confirmed by subsequent Court of Appeal decisions, which have relied upon Ribas in declaring that this privilege applies to statements made in—or in good faith contemplation of—a private contractual arbitration proceeding, treating such proceedings as analogous to judicial proceedings. (See ITT Telecom Products Corp. v. Dooley (1989) 214 Cal.App.3d 307, 314-317, & fn. 7 [262 Cal.Rptr. 773] [private commercial arbitration]; Wallin v. Vienna Sausage Manufacturing Co. (1984) 156 Cal.App.3d 1051, 1056 & fn. 5 [203 Cal.Rptr. 375] [labor arbitration].) A leading treatise on California law provides further indication that the Ribas decision generally has been understood in just this fashion. (See 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 515(e), p. 592 [“Because of its similarity to a judicial proceeding, an arbitration proceeding is within the scope of the privilege, and causes of action based on injury stemming from arbitration testimony are barred. (Ribas v. Clark . . . .)”].)
The Ribas case was decided in 1985, and since then the Legislature has amended section 47 on numerous occasions without ever indicating its disagreement or disapproval of the Ribas holding that the “judicial proceeding” or litigation privilege applies to private arbitration proceedings. Thus, even if there was any reason to question the validity of Ribas' s interpretation of section 47 as an original proposition, principles of stare decisis as applied to questions of statutory interpretation would counsel against overturning the Ribas holding at this time.
[649]B
Furthermore, even if we were to view the issue before us as a matter of first impression, we would conclude that the litigation privilege of section 47(b)(2) applies to statements made in a private, contractual arbitration proceeding.
As we already have discussed (see pt. II, ante), the significant purposes furthered by section 47(b)(2)—i.e., encouraging witnesses to provide open and candid testimony, and preserving the integrity and finality of dispute resolution—strongly support application of the privilege to private arbitration proceedings. Additionally, as will be demonstrated, the history of section 47(b)(2) supports such an application.
The various privileges embodied in section 47 are derived from, and in general represent a codification of, the comparable privileges that originated in, and were developed by, the common law courts. (See, e.g., Saroyan v. Burkett (1962) 57 Cal.2d 706, 710 [21 Cal.Rptr. 557, 371 P.2d 293]; Albertson v. Raboff (1956) 46 Cal.2d 375, 379 [295 P.2d 405].)7
The relevant common law privilege applicable to witnesses is set forth in section 588 of the Restatement Second of Torts as follows: “A witness is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding or as part of a judicial proceeding in which he is testifying, if it has some relation to the proceeding.” (Italics added.) In describing the scope of the term “judicial proceeding” as used in this section, comment d to section 588 specifically provides: “Judicial proceedings include all proceedings in which an officer or tribunal exercises judicial functions, as to which see § 585, Comments c and /. As indicated there, an arbitration proceeding may be included.” (Rest.2d Torts, § 588, p. 251, italics added.)
Section 585 of the Restatement Second of Torts, the section to which comment d of section 588 of the Restatement refers, embodies the related [650]common law privilege or immunity applicable to judges or other officers performing a judicial function. Section 585 provides: “A judge or other officer performing a judicial function is absolutely privileged to publish defamatory matter in the performance of the function if the publication has some relation to the matter before him.” Comment c of section 585 (which also is referred to in comment d of section 588) states, in relevant part: “The exercise of the judicial function is also not confined to tribunals created by legislative provisions. Thus, in a grievance proceeding arising under a collective bargaining agreement, the arbiter is exercising a judicial function, and the indications are that the protection of this Section extends to him as well.” (Rest.2d Torts, § 585, pp. 245-246, italics added.)
As these sections reveal, at common law the absolute privilege or immunity accorded both witnesses and officers performing a judicial function were parallel privileges; the scope of the term “judicial proceeding,” to which the witness privilege applied, was understood to include proceedings in which an officer or tribunal exercises judicial functions (and in which the officer thereby is accorded the protection of an absolute privilege). It long has been recognized that, in private arbitration proceedings, an arbitrator enjoys the benefit of an arbitral privilege because the role that he or she exercises is analogous to that of a judge. (See Domke, The Arbitrator’s Immunity From Liability: A Comparative Survey (1971) 1971 U. Tol. L.Rev. 99, 99 [“There is hardly any aspect of arbitration law and practice more settled, both in domestic and international relations, than the immunity of arbitrators from court actions for their activities in arriving at their award.”]; see generally, Domke on Commercial Arbitration (rev. ed. 1991) § 23:01, pp. 351-354.) This rule—immunizing arbitrators in private contractual arbitration proceedings from tort liability—is well established in California. (See Code Civ. Proc., § 1280.1; Baar v. Tigerman (1983) 140 Cal.App.3d 979, 982 [211 Cal.Rptr. 426, 41 A.L.R.4th 1004] [recognizing broad arbitral immunity prior to enactment of Code Civ. Proc., § 1280.1].) Thus, our conclusion in Ribas that a private arbitration proceeding properly is considered a “judicial proceeding” for purposes of section 47(b)(2) follows logically from the parallel treatment accorded witnesses and officers who exercise a judicial function under the common law.
Furthermore, our holding in Ribas that the litigation privilege applies to testimony at a private arbitration proceeding also is consistent with the great weight of authority in those other jurisdictions that have addressed the issue. (See, e.g., Corbin v. Washington Fire and Marine Insurance Co., supra, 278 F.Supp. 393, 395-399, affd. 398 F.2d 543; Odyniec v. Schneider (1991) 322 Md. 520 [588 A.2d 786, 789-793]; Shearson Hayden Stone, Inc. v. Liang (N.D.Ill. 1980) 493 F.Supp. 104, 109; Sturdivant v. Seaboard Service System, [651]Ltd., supra, 459 A.2d 1058, 1059-1060; Kloch v. Ratcliffe (1985) 221 Neb. 241 [375 N.W.2d 916, 919-921]; Neece v. Kantu (1973) 84 N.M. 700 [507 P.2d 447, 452-454]; accord, DeTomaso v. Pan American World Airways, Inc. (1987) 43 Cal.3d 517, 526-533 [235 Cal.Rptr. 292, 733 P.2d 614] [statements made in investigation stage of labor arbitration proceeding are privileged under federal law: “If an employee can institute a civil action, in essence litigating the questions at issue in an arbitration, the value of arbitration as a dispute resolution tool will be undermined.” (Id. at p. 528.)].)
Accordingly, even if we were to view the issue before us as one of first impression, we would conclude that the litigation privilege of section 47(b)(2) applies to a witness who testifies at a private contractual arbitration proceeding.8
IV
In reaching a contrary conclusion in this case, the Court of Appeal relied very heavily upon the case of Hackethal v. Weissbein, supra, 24 Cal.3d 55, in which this court, in a closely divided decision, ruled that a quasi-judicial “peer review” proceeding, held before the “judicial commission” of a county medical society (a private association) with regard to the proposed expulsion of a physician from the society, was not an “official proceeding authorized by law” within the meaning of section 47(2), and, as a consequence, that a witness who testified at such a proceeding was not entitled to the absolute privilege afforded by the statute. Plaintiffs also rely heavily upon Hackethal, contending that the distinction drawn in that case between governmental and private proceedings should apply in the present context as well. As we shall explain, in our view the Hackethal decision provides no basis for concluding that the litigation privilege does not apply to a private contractual arbitration proceeding.
As noted, the issue presented in Hackethal v. Weissbein, supra, 24 Cal.3d 55, was whether a peer review proceeding conducted by a private medical society was an “official proceeding authorized by law” within the meaning of the then-applicable provisions of section 47. No claim was raised in Hackethal that the peer review proceeding was a “judicial proceeding” within the meaning of section 47, and consequently this court in Hackethal had no occasion to analyze or interpret the scope of section 47’s privilege for [652]statements made in “any . . . judicial proceeding.” Unlike a private contractual arbitration proceeding, the peer review hearing at issue in Hackethal was simply a private organization’s own internal procedure for determining whether the physician should lose his membership in the organization, and was not a substitute for a court proceeding. Moreover, the decision makers in such a peer review proceeding, unlike the arbitrators presiding over a contractual arbitration proceeding, were not protected by the absolute privilege, traditionally accorded officers performing a judicial function, for actions taken at the proceeding. (See § 43.7 [providing a qualified privilege for members of medical peer review committees].) A private contractual arbitration proceeding, conducted before a neutral decision maker and intended to resolve a controversy that otherwise would require resort to a court (and that—as in the present case—frequently is ordered as the result of a petition filed in a pending civil action [Code Civ. Proc. § 1281.2]), plainly is much more analogous to a traditional court proceeding than the peer review proceeding at issue in Hackethal. Accordingly, the determination in Hackethal, that a private peer review proceeding does not fall within the scope of the “official proceeding authorized by law” provision of section 47, is not inconsistent with the conclusion that a private arbitration proceeding constitutes a “judicial proceeding” within the meaning of section 47(b)(2). Indeed, as we have seen, in Ribas v. Clark, supra, 38 Cal.3d 355, decided six years after Hackethal, we applied the litigation privilege to testimony given in such a private arbitration proceeding, without any suggestion, from either the parties or any member of this court, that such a conclusion conflicted with the Hackethal decision.
Furthermore, to the extent that plaintiffs rely upon Hackethal v. Weissbein, supra, 24 Cal.3d 55, as indicative of a more general legislative intent to confine the scope of the absolute privilege accorded in all of the subsections of section 47(b) to statements made only in governmental, and not private, proceedings, we believe that an examination of the action taken by the Legislature in response to the Hackethal decision completely refutes such a claim.
A brief chronology is instructive. The Hackethal decision, supra, 24 Cal.3d 55, was filed on April 12, 1979, and elicited a very swift legislative response. One month later, on May 14,1979, a pending bill (Assem. Bill No. 478) was amended, effectively to overrule the Hackethal decision, by adding a new subsection to section 47(b), extending the privilege to “any other proceeding authorized by law and reviewable [by writ of mandate],” namely, to the very type of quasi-judicial, peer review proceedings of private associations that had been at issue in Hackethal. (See Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal.Rptr. 90, 551 P.2d 410].) [653]On May 25, 1979, the Assembly passed the amended version of Assembly Bill No. 478 by a 67-0 vote (3 Assem. J. (1979-1980 Reg. Sess.) p. 5481); less than a month later, on June 19, 1979, the Senate passed the bill by a 29-0 vote (3 Sen. J. (1979-1980 Reg. Sess.) pp. 4727-4728). The Governor signed the bill into law on June 29, 1979. (Stats. 1979, ch. 184, § 1, pp. 403-404.)
The lesson conveyed by this legislative action appears clear. By its immediate, unanimous response to Hackethal v. Weissbein, supra, 24 Cal.3d 55, the Legislature demonstrated a strong conviction that the absolute privilege afforded by section 47 should not be confined narrowly only to witnesses who testify in peer review proceedings conducted by governmental agencies, but rather should apply also to witnesses who testify in analogous peer review proceedings conducted by private entities, because the purposes served by the privilege apply equally to such proceedings. This legislative reaction belies plaintiffs’ claim that, as a general proposition, the Legislature intended to limit the reach of the section 47(b) privilege only to governmental proceedings.
Thus, in our view, the Hackethal decision, supra, 24 Cal.3d 55, is not inconsistent with the conclusion that the litigation privilege applies to statements made in a private contractual arbitration proceeding.
V
Plaintiffs and several amici curiae proffer a number of additional arguments in support of their claim that the litigation privilege of section 47(b)(2) should not be interpreted as applying to private contractual arbitration proceedings. As we explain, we conclude that none of these additional contentions is persuasive.
A
Plaintiff's claim that the absolute privilege of section 47(b)(2) should not be applied to a witness’s testimony at a private arbitration proceeding because such a proceeding often lacks the solemnity and formal trappings of court proceedings held in a public courtroom. Plaintiffs suggest that the absence of such formality increases the risk that a witness may commit perjury. As this court’s decision in Silberg, supra, 50 Cal.3d 205, 212, makes clear, however, the litigation privilege regularly has been applied “to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.” (Italics added.) Thus, the litigation privilege never has been [654]limited to statements made before a judge in the confines of a formal public courtroom.
Furthermore, plaintiffs’ argument that the statute should be read to limit the reach of the absolute privilege only to testimony given in the formal setting of a courtroom is refuted also by the legislative response to the Hackethal decision, supra, 24 Cal.3d 55. As we just have discussed, in amending section 47(b) in the wake of Hackethal, the Legislature explicitly applied the absolute statutory privilege to testimony given in private, quasi-judicial peer review proceedings, which generally are no more formal or public than a typical private, contractual arbitration proceeding. Indeed, in view of the Legislature’s action in amending the statute in response to Hackethal, the interpretation of section 47(b)(2) proposed by plaintiffs would create the anomalous circumstance of a witness who testified in a private peer review proceeding being entirely protected from a subsequent tort action on the basis of such testimony, whereas a witness who testified in a private arbitration proceeding—which bears a much greater similarity to a traditional court proceeding—would enjoy no such protection. In view of the Legislature’s strong endorsement of the use of arbitration as an alternative to the court system (see, e.g., Code Civ. Proc., § 1141.10, subd. (a); Moncharsh v. Heily & Blase, supra, 3 Cal.4th 1, 9; Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 322 [197 Cal.Rptr. 581, 673 P.2d 251]), we believe it would be unreasonable for us to construe section 47(b)(2) as creating such a disparity.
B
Plaintiffs next contend that Code of Civil Procedure section 1280.1— which provides that “an arbitrator” in a contractual arbitration proceeding “has the immunity of a judicial officer from civil liability”—reflects a legislative determination not to extend an absolute privilege to statements made by a witness or by other participants in a private contractual arbitration proceeding. Plaintiffs argue that had the Legislature intended to create an immunity from suit for all participants (including witnesses) in contractual arbitration, the Legislature specifically would have included all such participants, and not only arbitrators, within the terms of section 1280.1. As we shall explain, plaintiffs’ reading of the legislative intent reflected in section 1280.1 does not withstand scrutiny.
Code of Civil Procedure section 1280.1 was enacted in 1985 in response to the Court of Appeal’s decision in Baar v. Tigerman, supra, 140 Cal.App.3d 979 (see American Arbitration Assn. v. Superior Court (1992) 8 Cal.App.4th 1131, 1133 [10 Cal.Rptr.2d 899]; Coopers & Lybrand v. Superior Court (1989) 212 Cal.App.3d 524, 534-535 [260 Cal.Rptr. 713]), and [655]consequently we must consider the Baar decision in ascertaining the purpose and significance of this statute.
In Baar v. Tigerman, supra, 140 Cal.App.3d 979, a party to a contractual arbitration proceeding brought suit against the arbitrator, claiming it had sustained damages as a result of the arbitrator’s failure to render a timely award (as allegedly required by the arbitration agreement). In analyzing the issue, the Court of Appeal began its discussion by explicitly recognizing that “[c]ourts of this country have long recognized immunity to protect arbitrators from civil liability for actions taken in the arbitrator’s quasi-judicial capacity. [Citation.] Arbitral immunity, like judicial immunity, promotes fearless and independent decisionmaking.” (140 Cal.App.3d at p. 982.) The court in Baar endorsed this fundamental principle, recognizing that the general doctrine of arbitral immunity applied in California (even though Code of Civil Procedure section 1280.1 had not yet been enacted.)
Although acknowledging that the arbitral immunity doctrine applied in California, the court in Baar noted that past cases recognizing arbitral immunity “involved disgruntled litigants who sought to hold an arbitrator liable for alleged misconduct in arriving at a decision” (140 Cal.App.3d at p. 983, original italics), and the court viewed the issue in the case before it as presenting the question whether “this court should extend immunity to an arbitrator who never renders an award.” {Ibid., original italics.) The court recognized that, under comparable circumstances, the immunity accorded a judge would prevent a litigant from bringing a similar tort suit—even against a judge who failed to decide a case within a statutorily prescribed deadline— but concluded that the differences between judicial and arbitral status warranted a more limited immunity for arbitrators. Accordingly, the court in Baar held that the proceedings in that case should be permitted to go forward.
In response to the decision in Baar, the Legislature enacted Code of Civil Procedure section 1280.1. As initially adopted in 1985, section 1280.1 provided: “An arbitrator has the immunity of a judicial officer from civil liability when acting in the capacity of arbitrator under any statute or contract.” (Stats. 1985, ch. 709, § 1, p. 2341.)
Viewed in context, the intent of the Legislature in enacting Code of Civil Procedure section 1280.1 is evident. Whereas Baar held that the scope of an arbitrator’s immunity is not as expansive as the immunity enjoyed by a judge, section 1280.1 provides that the immunity afforded arbitrators in private arbitration proceedings is equivalent to the immunity “of a judicial officer.” Thus, section 1280.1 reflects a legislative conclusion that the [656]differences that exist between arbitration and court proceedings do not warrant affording an arbitrator less protection against tort liability than that conferred upon a judge.
In light of this legislative history, we believe it is unreasonable to suggest that, because Code of Civil Procedure section 1280.1 applies only to arbitrators, we should infer that the Legislature, in enacting that statute, expressed its intent not to afford a similar immunity to other participants in private arbitration proceedings. Section 1280.1 was enacted in response to a specific appellate decision (Baar v. Tigerman, supra, 140 Cal.App.3d 979) that, in the Legislature’s view, improperly limited the scope of the immunity applicable to arbitrators. At the time the Legislature enacted section 1280.1, no decision had suggested that the testimonial privilege traditionally accorded witnesses would not be afforded to witnesses who testify in arbitration proceedings. Indeed, when section 1280.1 was enacted into law in September 1985, this court just recently had held—in Ribas v. Clark, supra, 38 Cal.3d 355 (decided in March 1985)—that the testimony of a witness in a private arbitration hearing was absolutely privileged under Civil Code section 47. Under these circumstances, we must reject the suggestion that the scope of section 1280.1 indicates an intent on the part of the Legislature to limit only to arbitrators the absolute immunity applicable in arbitration proceedings. (Accord, American Arbitration Assn. v. Superior Court, supra, 8 Cal.App.4th 1131, 1134 [rejecting argument that, because Code Civ. Proc., § 1280.1 refers only to an “arbitrator,” the Legislature did not intend to extend immunity to the organization sponsoring an arbitration proceeding]; Thiele v. RML Realty Partners (1993) 14 Cal.App.4th 1526, 1529-1530 [18 Cal.Rptr.2d 416] [same].)
Moreover, a 1990 amendment of Code of Civil Procedure section 1280.1 confirms that this provision cannot properly be construed as a limitation upon an otherwise applicable immunity afforded by section 47(b). This 1990 amendment added a second paragraph to section 1280.1, providing: “The immunity afforded by this section shall supplement, and not supplant, any otherwise applicable common law or statutory immunity.” (Stats. 1990, ch. 817, § 2.)
In sum, we conclude that section 1280.1 provides no support for plaintiffs’ contention that the litigation privilege of section 47(b)(2) does not apply to the testimony of a witness at a private contractual arbitration proceeding.
C
Finally, an amicus curiae brief, filed on behalf of several consumer protection organizations, additionally suggests that, as a policy matter, the [657]litigation privilege of section 47(b)(2) should not be applied to private contractual arbitration proceedings on the ground that arbitration clauses frequently are inserted into consumer contracts on a unilateral basis and are not voluntarily agreed to by consumers. In our view, amici curiae’s argument is flawed in two separate respects.
First, to the extent the argument rests upon the asserted unfairness of requiring a consumer to be bound by an arbitration clause thrust upon the consumer in a contract of adhesion, the appropriate remedy would appear to be a direct challenge to the validity of the arbitration proceeding itself (see, e.g., Patterson v. ITT Consumer Financial Corp. (1993) 14 Cal.App.4th 1659, 1663-1667 [18 Cal.Rptr.2d 563]), rather than the adoption of a novel rule that would subject a witness, who happens to be called upon to participate in such a proceeding, to potential tort liability. In essence, the asserted wrong of which amici curiae complain does not appear logically to support the proposed remedy.9
Second, to the extent that amici curiae’s argument rests upon an assumption that withholding the litigation privilege from arbitration proceedings will work to the advantage of individual consumers, we believe the argument is based upon a questionable premise. Because of the relatively low cost and efficiency of the arbitration process, an individual consumer involved in a typical consumer dispute frequently will find an arbitral forum more accessible than the more expensive and cumbersome court system. (See, e.g., Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 711-712 [131 Cal.Rptr. 882, 552 P.2d 1178].) Furthermore, when consumers are involved in an arbitration proceeding, they are as likely as their adversaries to require the assistance of witnesses—witnesses who, as already explained, may well be deterred from testifying, or from testifying fully and candidly, without the protection of the litigation privilege. Indeed, in view of the disparity in resources between an individual consumer and an institutional adversary, it appears reasonable to suspect that, were this court to adopt a rule permitting a witness who testifies at an arbitration proceeding to be subjected to a collateral tort action, an individual consumer probably would be at a relative disadvantage in securing the testimony of witnesses, because such witnesses presumably would recognize that the consumer’s institutional adversary has the financial resources to pursue just such a retaliatory action against them. Thus, we believe that consumers are, at the very least, as likely as other [658]participants to benefit from application of the litigation privilege to arbitration proceedings.
Accordingly, in our view, amici curiae’s arguments against applying the litigation privilege to private contractual arbitration proceedings are unpersuasive and provide no justification for departing from the established rule.
VI
For the reasons discussed above, we conclude that statements made in the course of a private contractual arbitration proceeding are protected by the litigation privilege embodied in section 47(b)(2).
The judgment of the Court of Appeal is reversed, and the matter is remanded to the Court of Appeal with directions to affirm the judgment of the superior court.
Lucas, C. J., Arabian, J., and Sills, J.,* concurred.
Although the protection afforded by the statute is commonly denominated a “privilege,” which creates a “privileged communication,” section 47(b) does not create an evidentiary privilege that protects a communication from compelled disclosure. (See, e.g., Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157,1168 [232 Cal.Rptr. 567, 728 P.2d 1202].) Instead, the section 47(b) privilege operates as a limitation on liability, precluding use of the protected communications and statements as the basis for a tort action other than for malicious prosecution. (See, e.g., Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1196 [17 Cal.Rptr.2d 828, 847 P.2d 1044]; Kimmel v. Goland (1990) 51 Cal.3d 202, 209 [271 Cal.Rptr. 191, 793 P.2d 524].) Thus, section 47(b) creates what in many other contexts is termed an “immunity” from suit.
Unless otherwise specified, all section references are to the Civil Code.
Section 47(b) currently provides in relevant part: “A privileged publication or broadcast is one made: H] . . . (b) In any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure . . . .”
At the time relevant to Silberg, section 47(2) read in pertinent part: “A privileged publication or broadcast is one made-H] ...[$] 2. In any ... (2) judicial proceeding
In Briscoe v. LaHue, supra, 460 U.S. 325, 333-334 [75 L.Ed.2d 96, 106-107], the United States Supreme Court elaborated on this point, observing that “[a] witness’ apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. [Citation.] And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. [Citation.] Even within the constraints of the witness’ oath there may be various ways to give an account or to state an opinion. These alternatives may be more or less detailed and may differ in emphasis and certainty. A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence. [Citation.] But the truthfinding process is better served if the witness’ testimony is submitted to ‘the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies.’ [Citation.]” (Fn. omitted.)
In addition, the court noted in Briscoe that “some courts expressed concern that, in the absence of a privilege, honest witnesses might erroneously be subjected to liability because they would have difficulty proving the truth of their statements. The result seemed inappropriate [to these courts] in light of the witness’ duty to testify. [Citations.]” (460 U.S. at p. 333, fn. 13 [75 L.Ed.2d at p. 106].)
This reference to “extrinsic fraud” apparently relates to the narrow doctrine permitting a collateral attack on a judgment that has been obtained by “extrinsic fraud,” i.e., under circumstances in which “the aggrieved party [has been] deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.” (8 Witkin, Cal. Procedure (3d ed. 1985) Attack on Judgment in Trial Court, § 204, p. 602.) The court in Silberg explicitly recognized that a “fraudulent communication” or “perjured testimony" made in the course of a judicial proceeding is absolutely privileged and does not provide a basis for avoiding the finality of the decision made in the litigation process itself. (Silberg, supra, 50 Cal.3d at p. 218.)
“Judicial arbitration” is a term of art that refers to the procedural scheme set forth in section 1141.10 et seq. of the Code of Civil Procedure. Although there are a number of [648]differences between “judicial arbitration” and the traditional contractual arbitration process authorized by section 1280 et seq. of the Code of Civil Procedure (see Blanton v. Womancare, Inc., supra, 38 Cal.3d 396, 401-402 & fn. 5), in both processes the proceeding consists of an adjudicatory proceeding presided over by one or more neutral, nongovernmental arbitrators, whose function typically is to resolve a dispute that otherwise would be subject to resolution by a court From the perspective of a witness who is called upon to testify in an arbitration proceeding, the two types of arbitration proceedings are virtually indistinguishable, and there appears to be no persuasive reason for immunizing a witness against subsequent tort liability in one context but not the other.
As originally enacted in 1872, section 47 provided in relevant part: “A privileged publication is one made: [J] . . . [J] 2. In testifying as a witness in any proceeding authorized by law to a matter pertinent and material, or in reply to a question allowed by the tribunal.” In 1874, the pertinent portion of section 47 was amended to read: “A privileged publication is one made: [$ . . . [1] 2. In any legislative or judicial proceeding, or in any other official proceeding authorized by law . . . .”
Although section 47 thereafter was amended at various times to change the numerical designations within the provision, the only additional substantive change in the pertinent portion of section 47 occurred in 1979, when the subdivision currently designated (b)(4)— relating to proceedings reviewable by writ of mandate—was added in response to this court’s decision in Hackethal v. Weissbein (1979) 24 Cal.3d 55 [154 Cal.Rptr. 423, 592 P.2d 1175, 9 A.L.R.4th 791]. We discuss below the 1979 amendment to section 47(b). (See, post, pp. 652-653.)
Because the statements at issue in the present case were made in the course of a private contractual arbitration proceeding authorized by California’s general arbitration statutes (see Code Civ. Proc., § 1280 et seq.), our holding applies to testimony given in such a proceeding. We have no occasion in this case to determine whether the litigation privilege applies to statements made in the course of “alternative dispute resolution” proceedings other than those involving arbitration.
Moreover, the Legislature specifically has encouraged the use of arbitration clauses in the type of medical services contract involved in the present case (see Gross v. Recabaren (1988) 206 Cal.App.3d 771, 776 [253 Cal.Rptr. 820]), and has provided explicitly that, so long as the arbitration clause complies with several statutorily prescribed conditions, “[s]uch a contract is not a contract of adhesion, nor unconscionable nor otherwise improper . . . .” (Code Civ. Proc., § 1295, subd. (e).)
Presiding Justice, Court of Appeal, Fourth Appellate District, Division Three, assigned by the Acting Chairperson of the Judicial Council.