Opinion
B160251.
7-25-2003
BERNARD GORSTEIN, Plaintiff and Appellant, v. WORLD SAVINGS BANK, Defendant and Respondent.
Bernard Gorstein, in pro. per., for Plaintiff and Appellant. Kester & Quinlan, Justin D. Balser and Steven L. Kester for Defendant and Respondent.
Bernard Gorstein appeals from an order of dismissal (judgment) entered after the court sustained without leave to amend the demurrer of World Savings Bank (Bank) to his complaint for abuse of process and violation of his right to a fair trial. We affirm the judgment because the complaint alleges actions which are protected by the litigation privilege of Civil Code section 47, subdivision (b)(2) (section 47(b)(2)), and therefore fails to state any viable claim for relief.
PROCEDURAL BACKGROUND
In 1997, Gorstein and his wife were involved in dissolution of marriage proceedings and a dispute arose concerning some checks drawn on Gorsteins individual account at Bank. Gorstein claimed his wife had forged the checks, some of which were payable to herself. Bank provided a $ 4,999.90 provisional credit to Gorsteins account pending the resolution of the matter in the dissolution proceeding, which was tried in late 1999. Bank interpreted the judgment in the dissolution proceeding as permitting Gorsteins wife to retain the funds and reversed the provisional credit to his account.
Premised on the claim that the dissolution judgment awarded him the funds held as a provisional credit, Gorstein filed an action against Bank for breach of contract (contract action). Bank answered the complaint and after the contract action was reclassified as a limited jurisdiction case, Bank obtained a summary judgment in its favor in November 2002. Gorsteins appeal of the summary judgment in the contract action is still pending.
In March 2002, Gorstein filed against Bank the instant action, alleging claims for abuse of process and for violation of his right to a fair trial. Both claims are based on alleged false statements contained in affirmative defenses in Banks answer to the contract action. Bank demurred to the complaint for abuse of process on the ground that it failed to state any claim for relief because the conduct alleged is protected by the litigation privilege of section 47(b)(2). After a hearing, the court sustained the demurrer without leave to amend. Gorstein appeals from the order of dismissal, contending that the litigation privilege does not protect perjurious claims nor the "noncommunicative tortious conduct" of Bank in reversing the provisional credit and withholding funds which Gorstein claims belong to him.
DISCUSSION
"Civil Code section 47, subdivision (b)(2), provides an absolute privilege for publications in a judicial proceeding. . . . Although originally enacted with reference to defamation actions alone [citation], the privilege has been extended to any communication, whether or not it is a publication, and to all torts other than malicious prosecution. [Citations.] [Citation.]" (Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 169-170.) "The principal purpose of the privilege is to afford the utmost freedom of access to the courts without fear of being subsequently harassed by derivative tort actions." (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1146 (Rothman ).) A privileged communication under Civil Code section 47, subdivision (b) includes one made in litigation by litigants to achieve the objects of the litigation and with some connection or logical relation to the action. (Id . at p. 1145.) "A partys pleadings obviously satisfy this test." (Id. at p. 1148.)
Application of section 47(b)(2) to the undisputed facts pleaded in the complaint is a question of law subject to independent review. (Rothman, supra, 49 Cal.App.4th at pp. 1139-1140.) Pursuant to our independent review, we conclude that the litigation privilege bars the claims asserted by Gorstein because their gravamen is the filing of an answer containing allegedly false and perjurious statements. Although the absolute litigation privilege does not preclude criminal liability for perjury (Budwin v. American Psychological Assn. (1994) 24 Cal.App.4th 875, 881, fn. 3), Gorstein fails to cite any authority establishing that the privilege does not apply to bar civil claims based on the filing of an answer. Because the theories of liability asserted in the complaint in this action (as opposed to the complaint in the contract action) are not premised on any "noncommunicative tortious conduct," Gorsteins arguments in this regard are inapposite. The trial court properly sustained the demurrer without leave to amend.
DISPOSITION
The judgment (order of dismissal) is affirmed.
We concur: SPENCER, P.J., VOGEL (MIRIAM A.), J.