Spira v. Superior Court

[35]

Opinion

KINGSLEY, Acting P. J.

Petitioners, as creditors of defendant SPK Corporation, sued that corporation, the real party in interest, and other persons, to set aside two allegedly fraudulent conveyances. In that complaint and in an amended complaint, in addition to allegations common to such litigation, plaintiffs pled that the real party in interest had never disclosed the allegedly fraudulent payments to him in his federal or state income tax returns. On motion of the real party in interest those allegations were stricken from the complaint. Thereafter, real party in interest filed a cross-complaint against petitioners and various fictitious cross-defendants referred to as attorneys for the petitioners. That cross-complaint sought recovery for invasion of privacy, based upon the inclusion in petitioners’ pleadings of the allegations above referred to. Petitioners demurred to the cross-complaint; their demurrer was overruled; the present petition for a writ of prohibition or mandate followed. We issued an alternative writ;

1

the matter has been fully considered. For the reasons set forth below, we direct the issuance of a peremptory writ of mandate as prayed.

Section 47 of the Civil Code grants an absolute privilege regarding statements made in connection with a judicial proceeding.

2

The statements herein involved were made purely in the context of a lawsuit, being contained in the complaint and amended complaint originally filed. Thus we have no problem concerning newspaper publicity, press conferences or similar kinds of publication. All that is required, in order to bring such a publication within the privilege is (a) that the statement be relevant to the litigation; and (b) that it be made to achieve the objects of the litigation.

(Ascherman

v.

Natanson

(1972) 23 Cal.App.3d 861, 865 [100 Cal.Rptr. 656] and cases cited.) And, if the publication meets those tests, it is immaterial that the publisher may have acted with malice. (Prosser on Torts (3d ed.) p. 877.)