Amylou R. v. County of Riverside Appellant's Opening Brief

B. The Trial Court Erred In Admitting Evidence Of Allegedly
Defamatory Communications.
While Civil Code section 47 is traditionally viewed as pertaining to defamation
actions, it is applicable to all torts, except malicious prosecution. (Silberg v.
Anderson, supra, 50 Cal.3d at p. 212.) Thus, the privilege immunizes defendants
from tort liability based on, for example, intentional infliction of emotional distress.
(E.g., Ribas v. Clark (1985) 38 Cal.3d 355, 364; Lerette v. Dean Witter
Organization. Inc. (1976) 60 Cal.App.3d 573, 579; Kachig v. Boothe (1971) 22
Cal.App.3d 626, 641.) It also immunizes defendants from tort liability based on
negligence. (Pettitt v. Levy, (1972) 28 Cal.App.3d 484.) In other words, regardless
of the label on the cause of action, the privilege still applies.
Thus, contrary to the court's assertion (RT 61), in light of section 47,
subdivision (b) and the authorities interpreting it, when a defamation cause of action is
barred, the same evidence cannot be used with respect to another cause of action,
because that would defeat the purpose of the statute.
As explained in Lerette v. Dean
Witter Organization Inc., supra, (where the court did not allow the privilege conferred
by section 47, subdivision (b) to be bypassed by a cause of action for intentional
infliction of emotional distress):
"To allow appellant to proceed with this cause of action would substantially
defeat the purpose of the privilege in section 47. It would exalt a judicially
derived cause of action (see Prosser, Intentional Infliction of Mental Suffering:
A New Tort (1939) 37 Mich. L. Rev. 874) above clear legislative intention
and operate as a severe deterrent to communications otherwise protected.
Therefore, no such cause of action, based upon the defamatory nature of a
communication which is itself privileged under the defamation laws, can be
permitted. [citations.]" (Id. at p. 579.)
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