Coulter v. Roddy

Plaintiff cannot prevail on the merits of the cause of
action for fraud because all of the alleged misrepresentations
occurred within the settlement negotiations of the
Estate Action, and California's litigation privilege protects
communications made in the course of settlement
unless they are the evidentiary subject of an
abuse of process claim.
[*16] 8 Oren Royal Oaks Venture
v. Greenberg, Bernhard, Weiss & Karma, Inc., 42
Cal. 3d 1157, 1167-68, 232 Cal. Rptr. 567, 728 P.2d
1202 (1986); see also Asia Inv. Co. v. Borowski, 133 Cal.
App. 3d 832, 843, 184 Cal. Rptr. 317 (1982).

The privilege, set forth in California Civil Code section 47(b),
protects any "publication or broadcast" made in a judicial
proceeding or "in the initiation or course of any other
proceeding authorized by law." CAL. CIV. CODE §
47(b). The privilege has been extended to reach any
communications and all torts, except for malicious
prosecution. Silberg v. Anderson, 50 Cal. 3d 205, 212,
266 Cal. Rptr. 638, 786 P.2d 365 (1990). The privilege
extends to "any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of
the litigation; and (4) that have some connection or logical
relation to the action." Id. This "absolute privilege"
has been applied to cases involving even fraudulent
communication or perjured testimony. Flatley, 39 Cal.
4th at 322 (quoting Silberg, 50 Cal. 3d at 218). Thus,
Murrell's alleged conduct is covered by the litigation
privilege, and any evidence offered by Plaintiff is insufficient
as a matter of law.

Plaintiff correctly points out that the litigation privilege
does not apply to cases of extrinsic fraud. "Fraud is
extrinsic when the defrauded party was deprived of the
opportunity to present his or her claim or defense to a
" Edwards v. Centex Real Estate Corp., 53 Cal.
App. 4th 15, 41, 61 Cal. Rptr. 2d 518 (Ct. App. 1997

The fraud that Plaintiff has alleged, however, - misrepresentations
made to induce Plaintiff to settle the litigation
- constitutes intrinsic fraud covered by the litigation
privilege. See id. (misrepresentations regarding the extent
of the damage to property and the required repairs in
order to induce plaintiffs to execute releases); Home Ins.
Co. v. Zurich Ins. Co., 96 Cal. App. 4th 17, 22-26, 116
Cal. Rptr. 2d 583 (Ct. App. 2002) (attorney's misrepresentation
of available insurance policy limits to induce
the settlement of a lawsuit); Navarro, 134 Cal. App. 4th
at 844 (misrepresentations about defendant's intentions
with regard to the settlement terms). Moreover, "[w]here
a civil judgment is procured by extrinsic fraud, [*18] the
normal remedy is to seek equitable relief from the judgment,
not to sue in tort." Rubenstein v. Rubenstein, 81
Cal. App. 4th 1131, 1147, 97 Cal. Rptr. 2d 707 (2000)
(citations omitted); see also Home Ins. Co. v. Zurich Ins.
Co., 96 Cal. App. 4th 17, 26, 116 Cal. Rptr. 2d 583 (Ct.
App. 2002) ("[T]he litigation privilege does not apply to
an equitable action to set aside a settlement agreement
for extrinsic fraud") (emphasis added).
Plaintiff also argues the litigation privilege does not
apply, relying on Shade Foods, Inc. v. Innovative Prods.
Sales & Marketing, Inc., 78 Cal. App. 4th 847, 93 Cal.
Rptr. 2d 364, 411 (Ct. App. 2000). However, unlike that
case, Plaintiff does not seek to use the statements solely
for evidentiary purposes in establishing intent. Here, the
privileged statements are the basis for liability. "[T]he
privileges of Civil Code section 47, unlike evidentiary
privileges . . ., operate as limitations upon liability." Id.
at 411.
In any event, Plaintiff lacks standing to assert
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