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Court of Appeal, First District, Division 2, California.

Barry Neil SILBERG, M.D., Plaintiff and Appellant, v. Margaret ANDERSON, Defendant and Respondent.

No. A039273.

Decided: July 26, 1988

William B. Daniels, II, P.C., Sebastopol, for plaintiff and appellant. Peter Dixon, Tammy L. O'Leary, Moore, Clifford, Wolfe, Larson & Trutner, Oakland, William B. Boone, Kornblum, Kelly & Herlihy, Santa Rosa, for defendant and respondent.

In this appeal from a dismissal following the sustaining of a demurrer without leave to amend, we face the issue of whether a husband has a cause of action against his ex-wife's divorce attorney for recommending an “independent” psychologist to administer counseling to the parties, while concealing the existence of an ongoing romantic relationship between herself and the psychologist.


In the complaint under review plaintiff-appellant Barry Neil Silberg seeks damages for “professional negligence, breach of contract and emotional distress” against defendant-respondent Margaret Anderson.   The pertinent allegations of the complaint are summarized as follows.

Plaintiff retained attorney Bruce H. Schwartz 1 and his wife retained Anderson as her attorney in legal dissolution proceedings.   Because of marital strife and plaintiff's estrangement from two of his four children, plaintiff asked Schwartz to inquire of Anderson as to the possibility of referring the parties to a psychologist for the dual purpose of (1) recommending appropriate custody and visitation arrangements and (2) engaging in an evaluative process designed to improve communication and relations between family members.   Subsequently, Schwartz and Anderson entered into a stipulation to select a “qualified and independent psychologist” to accomplish these objectives.

With Schwartz's consent, Anderson selected Dr. Adler, a person with whom she was a having an undisclosed relationship,2 as the psychologist to perform the evaluation.   Plaintiff attended all therapy sessions administered by Dr. Adler.   Dr. Adler subsequently rendered a report that was “biased, wholly inaccurate and defamatory” toward plaintiff.   As a result, plaintiff suffered the loss of reasonable visitation rights, damage to his reputation in the community, humiliation, estrangement from his children and emotional distress.

Four causes of action are directed at Anderson:  third party beneficiary breach of contract, negligence, intentional infliction of emotional distress and negligent infliction of emotional distress.

The third cause of action alleges that plaintiff was the third party beneficiary of the stipulation between his attorney and Anderson for the retention of an independent psychologist and that Anderson breached the contract by recommending a person with whom she had a relationship, thus “insur[ing] the inability to procure an independent consultation.”   The fourth cause of action alleges that Anderson had a “duty to each member of the family including plaintiff” to procure an independent consultation, and that she breached that duty by selecting Dr. Adler.   The fifth (intentional tort) cause of action alleges that Anderson, aware of plaintiff's emotional instability and vulnerability during the dissolution proceedings, and “knowing fully” of her relationship with Dr. Adler and “her ability and intention to influence the said Dr. in his deliberations, consultation and analysis,” encouraged and obtained plaintiff's consent to the employment of Dr. Adler as the family counselor, causing plaintiff severe emotional distress.   It was further alleged that such conduct was “willful, wanton, malicious and ․ obviously in violation of her obligations as an attorney and officer of the court.”   The sixth cause of action alleges the infliction of emotional distress in a negligent rather than an intentional manner.

Anderson demurred to all counts against her on grounds of failure to state a cause of action.   The trial court sustained the demurrer without leave to amend, ruling, inter alia, that all conduct described by the complaint was absolutely privileged.



 We first consider the fifth cause of action for intentional infliction of emotional distress.  Civil Code section 47 provides, in part, that “A privileged publication or broadcast is one made—[¶] ․  2. In any ․ (2) judicial proceeding․”  “ ‘[A]lthough the statutory privilege accorded to statements made in judicial proceedings appears in the code in the chapter on defamation, it applies to virtually all other causes of action, with the exception of an action for malicious prosecution.’ ”   (Carden v. Getzoff (1987) 190 Cal.App.3d 907, 913, 235 Cal.Rptr. 698, quoting Pettitt v. Levy (1972) 28 Cal.App.3d 484, 489, 104 Cal.Rptr. 650.)   Thus, “the privilege ‘has been applied to defeat tort actions based on publications in protected proceedings but grounded on different theories of liability’ ” (ibid ), including the tort of intentional infliction of emotional harm.  (Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 579, 131 Cal.Rptr. 592.)

The source of the privilege may be traced as far back as Taylor v. Bidwell (1884) 65 Cal. 489, 4 P. 491 (Taylor ), in which the California Supreme Court held that perjury or the subornation of perjury cannot form the basis for a civil action against the wrongdoer.   Said the court:  “however just and reasonable it may appear, upon the first view of the proposition, that a man who has by perjury injured another, should be answerable, yet, on a nearer inspection, when the mischiefs resulting from upholding that proposition are considered, the conclusion must be that it would be dangerous in the extreme to sustain the action.”  (Id., at p. 490, 4 P. 491.)   Since Taylor the absolute privilege has been applied to such acts as bribing a witness (Pico v. Cohn (1891) 91 Cal. 129, 25 P. 970);  filing a false and malicious lis pendens (Albertson v. Raboff (1956) 46 Cal.2d 375, 295 P.2d 405);  submitting a fraudulent building permit to the city planning commission (Pettitt v. Levy, supra, 28 Cal.App.3d 484, 104 Cal.Rptr. 650);  attempting to probate a forged will (Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 226 Cal.Rptr. 694);  using illegally obtained evidence at trial (Ribas v. Clark (1985) 38 Cal.3d 355, 212 Cal.Rptr. 143, 696 P.2d 637);  and preparing and introducing false accounting evidence (Carden v. Getzoff, supra, 190 Cal.App.3d 907, 235 Cal.Rptr. 698).

On the other hand, filing slanderous statements in pleadings for the sole purpose of having them republished by the media (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 106 Cal.Rptr. 718 (Bradley ));  personally notifying interested parties of a claim of title to real property after the expungement of a lis pendens (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 175 Cal.Rptr. 767 (Earp ));  threatening to bring criminal charges to obtain advantage in a civil proceeding (Kinnamon v. Staitman & Snyder (1977) 66 Cal.App.3d 893, 136 Cal.Rptr. 321, (Kinnamon ));  attaching a confidential State Bar complaint to a set of interrogatories (Younger v. Solomon (1974) 38 Cal.App.3d 289, 113 Cal.Rptr. 113);  writing a letter threatening to institute litigation without a good faith intention of doing so (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 231 Cal.Rptr. 113 (Fuhrman ));  and misrepresenting the financial worth of a company to the bankruptcy court in order to achieve personal business goals (Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal.App.3d 319, 213 Cal.Rptr. 168 (Barbary Coast )) are acts which have been held outside the scope of the litigation privilege.

As we pointed out in Barbary Coast, two schools of thought seem to have developed on what test should be used to determine whether or not the privilege attaches.   One line of cases holds that privilege applies wherever the publication has “some connection or logical relation” to the judicial proceedings.  (E.g., Pettitt v. Levy, supra, 28 Cal.App.3d 484, 489, 104 Cal.Rptr.   650;  Portman v. George McDonald Law Corp. (1979) 99 Cal.App.3d 988, 991, 160 Cal.Rptr. 505.)   The other test, which this division pioneered in Bradley and which we think represents the more enlightened view, requires that the publication be “made in furtherance of the litigation and to promote the interest of justice.”  (30 Cal.App.3d at p. 826, 106 Cal.Rptr. 718;  see Kinnamon, supra, 66 Cal.App.3d 893, 897, 136 Cal.Rptr. 321;  Earp, supra, 122 Cal.App.3d 270, 284, 175 Cal.Rptr. 767, Barbary Coast, supra, 167 Cal.App.3d 319, 333, 213 Cal.Rptr. 168;  Fuhrman, supra, 179 Cal.App.3d 408, 421, 231 Cal.Rptr. 113;  McKnight v. Faber (1986) 185 Cal.App.3d 639, 650, 230 Cal.Rptr. 57.)

It ought to be recognized that Taylor and the closely analogous “perjury” line of cases which followed it are difficult to reconcile with the modern “promotion of justice” test.  (See Carden v. Getzoff, supra, 190 Cal.App.3d 907, 917, 235 Cal.Rptr. 698 (Danielson J., conc.).)   However, we think the survival of the Taylor line of authority is viable on the justification that permitting a disgruntled litigant to sue over perjury, forgery or fraudulent statements arising directly out of the judicial proceeding would have the untoward result of sanctioning a second lawsuit over this same issue—the truth or falsity of evidence before the court.3  However, where the publication is more removed from the heart of the lawsuit, California courts have tended to scan the conduct with greater scrutiny to ascertain whether it can truly be said that the publisher made it in furtherance of a legitimate litigation objective.  (E.g., Kinnamon, supra, 66 Cal.App.3d 893, 136 Cal.Rptr. 321;  Earp, supra, 122 Cal.App.3d 270, 175 Cal.Rptr. 767;  and Fuhrman, supra, 179 Cal.App.3d 408, 231 Cal.Rptr. 113.)  “ ‘ “[T]he application of the absolute privilege on certain occasions must be confined within narrow limits and the tendency of the courts is not to extend such limits unless the public policy upon which the privilege rests is found to exist in a new situation.   Accordingly ․ the class of occasions where the publication of defamatory matter is absolutely privileged is confined to cases in which the public service or the administration of justice requires complete immunity.” ’ ”  (Fuhrman, 179 Cal.App.3d 408, 421, 231 Cal.Rptr. 113, quoting Earp, supra, 122 Cal.App.3d at p. 283, 175 Cal.Rptr. 767 and Bradley, supra, 30 Cal.App.3d at p. 824, 106 Cal.Rptr. 718, emphasis added.)

 In a case such as the one here where the conduct occurs outside the crucible of court proceedings, we believe that the Bradley test is the more soundly reasoned.   The complaint at bar alleges that Anderson procured a stipulation to retain Dr. Adler as a qualified and independent psychologist to whom plaintiff and his family could submit themselves, while withholding the very crucial fact that she and the doctor were in the midst of an intimate relationship which enabled her to unfairly prejudice his report to the court.  Business and Professions Code section 6068, subdivision (d) provides that it is the duty of an attorney “never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.”   Section 6128 of the same code provides that “[e]very attorney is guilty of a misdemeanor who ․ [¶] ․ [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with the intent to deceive the court or any party.”  (Emphasis added.)   Neither the fact that the publisher seeks to secure a litigation advantage, nor that the communication is made during the pendency of a judicial proceeding, is alone sufficient to establish that the acts are protected by Civil Code section 47 immunity.  (Earp, supra, 122 Cal.App.3d at pp. 284–285, 175 Cal.Rptr. 767;  McKnight v. Faber, supra, 185 Cal.App.3d 639, 650, 230 Cal.Rptr. 57.)   If as appellant suggests, Anderson's purpose in procuring Dr. Adler was simply to generate for him additional business, or through artifice and deceit to gain the upper hand for her client in the dissolution action, her behavior can hardly be characterized as promoting the interests of justice.   Criminal or blatantly unethical conduct by an attorney has no reasonable relationship to her duties as an officer of the court and is plainly inconsistent with privileged status.  (See Kinnamon, supra, 66 Cal.App.3d 893, 897, 136 Cal.Rptr. 321;  Barbary Coast, supra, 167 Cal.App.3d 319, 333, 213 Cal.Rptr. 168;  Fuhrman, supra, 179 Cal.App.3d 408, 421, 231 Cal.Rptr. 113;  Biakanja v. Irving (1958) 49 Cal.2d 647, 651, 320 P.2d 16.)   Conduct with no goal other than to circumvent the normal judicial process impedes the interest of justice and cannot be accorded the benefits of absolute immunity.  (Earp, supra, 122 Cal.App.3d at p. 285, 175 Cal.Rptr. 767;  McKnight v. Faber, supra, 185 Cal.App.3d 639, 650, 230 Cal.Rptr. 57;  Barbary Coast, supra, 167 Cal.App.3d at pp. 334–335, 213 Cal.Rptr. 168.) 4  On the other hand, if Anderson had a proper and legitimate purpose for her actions, the conduct would fall within the range of protected communication made in furtherance of litigation and to promote the interest of justice.   The question is an evidentiary one to be resolved by the trier of fact;  it cannot be resolved by demurrer, which tests only sufficiency of the pleadings.  (Fuhrman, supra, 179 Cal.App.3d at p. 422, 231 Cal.Rptr. 113;  see also Herzog v. “A” Company, Inc. (1982) 138 Cal.App.3d 656, 662, fn. 5, 188 Cal.Rptr. 155.) 5


 A cause of action for intentional infliction of emotional distress may be predicated upon conduct which exceeds the bounds tolerated by a decent society.  “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff's interest;  (2) knows the plaintiff is susceptible to injuries through mental distress;  or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.”  (Wallis v. Superior Court (1984) 160 Cal.App.3d 1109, 1120, 207 Cal.Rptr. 123, citing Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, 131 Cal.Rptr. 547.)

 Plaintiff's fifth cause of action adequately alleges that Anderson knew of plaintiff's susceptibility to emotional distress through abuse of her position as an officer of the court.   However, plaintiff fails to allege an improper objective in the procurement of Dr. Adler's services.   Although it is asserted that the selection was made by Anderson “knowing fully the relationship she had” with the doctor and with knowledge of her ability to influence him, an intentional act of deception or artifice is not alleged.   Because, as we conclude in the next section of the opinion, Anderson owed no duty to plaintiff which would facilitate recovery based on either contractual or negligence theories, the cause of action, as it now stands, falls short of crossing the threshold into unprivileged conduct.

 Nevertheless, if there is any reasonable possibility that plaintiff can state a cause of action, such as by supplying additional allegations, it is error to deny leave to amend.  (5 Witkin, Cal. Procedure (3d ed.1985) Pleading, § 943, p. 378;  see Okun v. Superior Court (1981) 29 Cal.3d 442, 460, 175 Cal.Rptr. 157, 629 P.2d 1369 and cases cited therein.)   Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, regardless of whether leave to amend is requested or not.  (Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 306, 191 Cal.Rptr. 704;  King v. Mortimer (1948) 83 Cal.App.2d 153, 158, 188 P.2d 502.)   Since there is a reasonable possibility that plaintiff could amend to state facts which would take Anderson's conduct outside the scope of privileged publication, the sustaining of the demurrer as to the fifth cause of action without leave to amend, was error.


 We now turn to the remaining causes of action for third party beneficiary breach of contract, negligence and negligent infliction of emotional distress.

Plaintiff claims that he was an “intended beneficiary” of the stipulation between Anderson and his attorney for the retention of a neutral psychologist and therefore she owed him a duty of care, even in the absence of privity.   (See Biakanja v. Irving, supra, 49 Cal.2d 647, 650, 320 P.2d 16.)  “In California, the attorney's duty to non-clients depends upon a ‘judicial weighing of the policy considerations for and against the imposition of liability under the circumstances.  [Citations.]’ ”  (St. Paul Title Co. v. Meier (1986) 181 Cal.App.3d 948, 950, 226 Cal.Rptr. 538, quoting Goodman v. Kennedy (1976) 18 Cal.3d 335, 342, 134 Cal.Rptr. 375, 556 P.2d 737.)   It is widely recognized that attorneys do not have a duty of care to adverse parties.  (Schick v. Bach (1987) 193 Cal.App.3d 1321, 1330, 238 Cal.Rptr. 902;  St. Paul Title Co. v. Meier, supra, 181 Cal.App.3d at p. 951, 226 Cal.Rptr. 538;  Morales v. Field, DeGoff, Huppert & MacGowan (1979) 99 Cal.App.3d 307, 318, 160 Cal.Rptr. 239.)   Even accepting the premise that the stipulation to retain Dr. Adler was purportedly for the “benefit” of both parties, there can be no denying that it was entered into between two adversary attorneys, each of whom owed a separate duty to advance his or her client's interests in the litigation.   There is no public policy reason for creating a professional duty of care toward an adverse party where he is represented at arms length by his own attorney;  nor in any sense can such party be called an “intended beneficiary” of the opposing attorney's services.  (Wasmann v. Seidenberg (1988) 202 Cal.App.3d 752, ––––, 248 Cal.Rptr. 744;  Morales v. Field, DeGoff, Huppert & MacGowan, supra, 99 Cal.App.3d at p. 318, 160 Cal.Rptr. 239;  Norton v. Hines (1975) 49 Cal.App.3d 917, 921, 123 Cal.Rptr. 237.)   Imposition of a professional duty of care under these circumstances would constitute an intolerable intrusion into the basic attorney-client relationship by severely undermining an attorney's duty of undivided loyalty to her client.  (See Goodman v. Kennedy, supra, 18 Cal.3d at p. 344, 134 Cal.Rptr. 375, 556 P.2d 737;  ABA Code of Prof. Responsibility, canon 5.)   Anderson's demurrer to the third, fourth and sixth causes of action was properly sustained without leave to amend.


The judgment of dismissal is reversed.   The cause is remanded to the trial court with directions to issue a new order sustaining the demurrer with leave to amend as to the fifth cause of action.


1.   Although Schwartz is named as a defendant in the complaint, he is not a party to this appeal.   Only the sufficiency of the allegations against Anderson are at issue here.

2.   While, in his appeal brief, plaintiff states that Anderson was “romantically involved” with Dr. Adler, the complaint itself uses the term “relationship” without specifying the nature of the relationship.   Despite the absence of the word “romantic” in the complaint, an inference of something more than friendship or acquaintanceship may reasonably be drawn.

3.   As the court in Pico v. Cohn, supra, 91 Cal. 129, 25 P. 970 cogently observed:  “The unsuccessful party is really prevented, by the fraudulent contrivance of his adversary, from having a trial;  but when he has a trial, he must be prepared to meet and expose perjury then and there․  The trial is his opportunity for making the truth appear․  Endless litigation, in which nothing was ever finally determined would be worse than occasional miscarriages of justice․”  (Id., at p. 134, 25 P. 970.)

4.   By repeatedly identifying Dr. Adler's report as the privileged publication, Anderson's argument is misfocused.   Dr. Adler is not a defendant.   While the report may have caused some of the damage complained of, the claimed tortious conduct was Anderson's recommending and obtaining plaintiff's consent to having Dr. Adler, as an ostensibly unbiased counselor, perform the family evaluation and make recommendations to the court.

5.   We are aware of remarks in Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 234 Cal.Rptr. 653, to the effect that a defendant's purpose or motive cannot be examined in determining whether a publication is privileged under section 47 of the Civil Code.  (Id., at pp. 776–777, 234 Cal.Rptr. 653.)   Such sweeping language is irreconcilable with a number of holdings which follow the modern view of the privilege and we therefore disassociate ourselves from it.

SMITH, Associate Justice.

ROUSE, Acting P.J., and BENSON, J., concur.