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Ellebracht v. Endres6/28/2002
The litigation privilege bars this lawsuit arising from statements made by defense counsel attacking the reasonableness of the medical bills submitted by the treating physician for the plaintiff.
I.
Since the sufficiency of a demurrer presents a question of law whether the complaint, liberally construed, states facts entitling plaintiffs to relief, we summarize the properly pleaded facts of the complaint, assuming them to be true. (Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17.) The underlying action involved a minor rear-end collision, where the insured driver admitted liability but contested damages. As defense counsel argued during closing: "You can't even call this a fender bender because the fenders weren't even bent. This was nothing more than a bumper tap."
Defense counsel challenged plaintiff's medical bills as inflated. He charged the treating physician with padding the medical bills for such medical treatments as hot packs, vibrating heat and massages: "Ka-ching, ka-ching, ka-ching. That's how you got a $4,000 bill that they would have you believe is reasonably required." He accused the treating physician of emigrating to the United States following his medical schooling in India "just as quick as he can because this is the land of milk and honey, or in this case, milk and money." "It looks like . . . he abandoned India for the money."
Plaintiff's attorney did not object during closing, nor did he move for a new trial when the jury returned with a defense verdict. Instead, plaintiff, his attorney and the treating physician brought the instant lawsuit for defamation, emotional distress, interference with prospective economic advantage and violation of civil rights.
After giving plaintiffs the opportunity to file an amended pleading, the trial court sustained defendants' demurrer to the first amended complaint, without leave to amend based on the litigation privilege. (Civ. Code, ยง 47, subd. (b).) The court stated, " n closing argument, an attorney in our system has great latitude to attribute bad motives to the other side's witnesses. . . . It is a public policy that favors an attorney's ability and freedom to represent his client vigorously at trial, even to the detriment of the feelings of the witnesses. . . . It seems to me that it would have a negative and chilling effect on trial advocates - on people like yourselves - to permit a statement of the sort attributed to [defense counsel] to be the basis of a claim against him."
II.
The litigation privilege broadly applies to communications made by litigation participants to achieve the objects of the litigation and which have some connection or logical relation to the action. It immunizes persons - lawyers, clients, witnesses - who participate in the legal system from fear of subsequent lawsuits based upon their in-court communications or statements, "thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result." (Silberg v. Anderson (1990) 50 Cal.3d 205, 214.) The privilege extends to all plaintiffs' tort causes of action. (Laborde v. Aronson (2001) 92 Cal.App.4th 459, 464.)
The litigation privilege clearly applies to assertions made during a closing argument. Subject to direction by the trial court, attorneys are granted wide latitude to argue their case vigorously, including an attack upon the qualifications, integrity or motivations of witnesses. Counsel's statements were made to a jury during a judicial proceeding, not to the public during a press conference. (Contrast Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1145.) The challenged state
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