Absolute Judicial Privilege Extends to Demand Letter and Draft Complaint

In Mansfield v. Bernabei, 727 S.E.2d 69 (Va. 2012), the Virginia Supreme Court affirmed the trial court’s dismissal of plaintiff’s complaint for defamation predicated on statements made about plaintiff, an attorney, in a draft complaint and demand letter.  Plaintiff was an attorney employed by a residential condominium which also, at one time, employed defendant.  Upon his termination, defendant sent a demand letter and draft complaint claiming that he had been discriminated against on the basis of his race to numerous individuals and entities.  Subsequently, the complaint was actually filed in substantially similar form.  The Complaint named plaintiff as a defendant due to his alleged involvement in defendant’s termination.  Plaintiff subsequently filed suit, alleging that he was defamed by material in the draft complaint.  Affirming the trial court’s dismissal of plaintiff’s defamation action, the Virginia Supreme Court held that the allegations made in the draft complaint were protected by the absolute judicial privilege.  In so holding, the Court was unpersuaded by plaintiff’s contention that the draft complaint and demand letter were not covered by the privilege because they were not part of a pending judicial proceeding.  Rather, the Court explained, the privilege extends to communications tangentially related to potential litigation it is “material, relevant, or pertinent” to the judicial process.  In the context of communications preliminary to proposed judicial proceedings, this means that the reviewing court must examine whether “1) the statement was made preliminary to a proposed proceeding; 2) the statement was related to a proceeding contemplated in good faith and under serious consideration, and 3) the communication was disclosed to interested persons.”

The scope of judicial privilege for pre-litigation statements is not unlimited.  In Nguyen v. Proton Tech. Corp., 69 Cal. App. 4th 140 (Cal. Ct. App. 1999) the California Court of Appeals found the privilege extends only to communications which are logically connected to the subject of the litigation.  Furthermore, conduct which violates the Rules of Professional Conduct, as well as outright threats, may fall outside of the ambit of the privilege.  In Nguyen, the Court explained that the privilege “does not prop the barn door wide open for any and every sort of prelitigation charge or innuendo, especially concerning individuals” and emphasized that “most potential abuse of this privilege for prelitigation communications can be prevented by enforcement of the relevancy requirement.”  Accordingly, the Court in Nguyen found that defendant’s conduct, which included notifying plaintiff’s new employer of his prior criminal record and contacting plaintiff’s parole officer to inform him of plaintiff’s allegedly competitive behavior, was not protected by the privilege.

Another remedy may be available to plaintiffs in states with Anti Strategic Lawsuits Against Public Participation (Anti-SLAPP) statutes, such as the District of Columbia and California.  While these lawsuits vary somewhat in their scope and in the remedies available thereunder, D.C.’s Anti-SLAPP statute, D.C. Code § 16-5501 et seq. provides that “[a] party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.”  See also, e.g., Cal. Civ. Proc. § 425.16 (California’s Anti-SLAPP statute).  This “special motion to dismiss” is intended to prevent the assertion of claims or counterclaim “without substantial merit brought against individuals or groups with the intention of silencing the opponents, or at least diverting their resources.”  See Kathryn W. Tate, California’s Anti-SLAPP Legislation: A Summary of and Commentary on Its Operation and Scope, 33 Loy. L.A. L. Rev. 801, 802-03 (2000).  Accordingly, to the extent that these defamation lawsuits are brought to deter plaintiffs from filing legitimate claims, they may be subject to peremptory dismissal under state Anti-SLAPP statutes.  See Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, 47 Cal. App. 777 (Cal. Ct. App. 1996) (affirming lower court’s decision to strike appellant’s complaint for defamation, predicated on statements in a pre-litigation letter distributed to third parties, based in part on the California Anti-SLAPP statute).   This is especially significant, as many such statutes – including the D.C. Anti-SLAPP statute – provide that a moving party who prevails on their motion may be awarded reasonable attorneys fees and costs.  D.C. Code § 16-5504.  

For additional information and background on this case and the doctrine of Judicial Privilege, see:

• Restatement [SECOND] Torts, § 586 
• http://virginiasupremecourtopinions.justia.com/2012/06/08/mansfield-v-bernabei/
• http://www.dcbusinesslawalert.com/virginia-law/the-virginia-supreme-court-extends-the-privilege-against-defamation-to-certain-lawsuit-related-state/
• http://www.buccidix.com/library/no-defamation-draft-complaint.cfm