Are Defamatory Statements Privileged in Divorce Actions?

Defamatory statements often occur  in the context of judicial proceedings.  If such statements could be the basis for an action for damages against parties and witnesses, this would deter parties and witnesses from participation in the judicial process.  In order to ensure access to the legal process and encourage effective litigation through free communication, the California Legislature enacted Civil Code section 47j which provides that statements made during judicial proceedings are generally privileged and nonactionable, except in a malicious prosecution claim.

One exception to the litigation privilege applies in dissolution actions under Civil Code §47(b)(1) which provides:

An allegation or averment in any pleading or affidavit filed in a marital dissolution or legal separation action, made of or concerning a person by or against whom no affirmative relief is prayed, shall not be a privileged publication or broadcast as to the person making the allegation or averment unless the pleading is verified or affidavit sworn to, and is made without malice, by one with reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues.

In L.G. v. M.B. (2018) wife filed a request for a restraining order against husband during her pending dissolution action.  In support of her request, wife filed a declaration wherein she described the alleged abuse by husband.  Wife also made allegations against the couple’s nanny, including that Husband set up the Nanny as Wife’s rival, and that the Nanny became pregnant with Husband’s child. Wife further alleged that Husband used Wife’s money to pay for an abortion, that the Nanny took her children to Europe without her permission and acted as Husband’s agent by keeping tabs on Wife.

Based solely on  Wife’s allegations in the declaration filed in the dissolution action, Nanny then filed a complaint in civil court alleging defamation, invasion of privacy, false light and intentional infliction of emotional distress.

Wife filed an anti-SLAPP motion against Nanny arguing that her statements about Nanny were privileged under Civ. Code §47(b)(1).  The Trial Court denied Wife’s anti-SLAPP motion, finding that exception to the litigation privilege applied.  Wife’s statements were included in a pleading filed in her dissolution action and Wife sought no relief from Nanny in that action.  Therefore her statements regarding the Nanny we unprotected.

On appeal Wife argued, among other things, that the divorce proviso should not apply because the declaration was filed in support of her request for a restraining order, rather than an issue related to dissolution of the marriage.  The Court disagreed noting that the divorce provision under Civ. Code §47 does not limit the application of the exception to the type of relief sought within a divorce action.

In summary, parties to an action for dissolution of marriage should be careful regarding statements made in declarations or testimony about nonparties to the action.  Such statements could be the basis for a cause of action, including defamation, against the declarant.

If you need more information about defamatory statements and divorce actions, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handles legal issues regarding adoption, annulment, mediation, child custody (with no accompanying domestic violence), child and spousal support as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email us at officestaff@Richardbawdenlaw.com

When he is not practicing law, Robert enjoys traveling, especially to the Caribbean and to Hawaii. He also claims the Lakers as his favorite sports team, loves Italian food, and often relaxes with a guitar.