On the other hand, reversal will open the sluice gates to the rivers of bitterness that often typify family law cases. (See Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1121 [ 255 Cal.Rptr. 315].) Lawyers are notoriously clever at overstating their cases in their complaints (see Gray v. Zurich Insurance Co. (1966) 65 Cal.2d 263, 276 [ 54 Cal.Rptr. 104, 419 P.2d 168]); a few failed OSC's in the family law courts will no doubt allow able counsel to construct a complaint that will make their case look almost as bad as this one.
The trial court filed its statement of decision and order without further hearing. The court found that six different actions and proceedings, including Green v. Uccelli (1989) 207 Cal.App.3d 1112 [ 255 Cal.Rptr. 315] (James's malicious prosecution suit against Caroline's attorney) were related to this marital dissolution proceeding within the meaning of section 4370 The court declared it had reviewed and was familiar with these actions, which were described in the declarations of Caroline's attorneys and the documents referred to therein. The court further found that "but for the pendency of the family law matter" and James's "desire to gain an unfair advantage over [Caroline] and to dissuade her counsel from pursuing the family law matter, none of the other actions would have been filed."
The usual formulation is that the privilege applies 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. (See, e.g., Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1124 [ 255 Cal.Rptr. 315]; Carney v. Rotkin, Schmerin McIntyre (1988) 206 Cal.App.3d 1513, 1521 [ 254 Cal.Rptr. 478]; Walsh v. Bronson (1988) 200 Cal.App.3d 259, 269 [ 245 Cal.Rptr. 888]; Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 772-773 [ 234 Cal.Rptr. 653]; Chen v. Fleming (1983) 147 Cal.App.3d 36, 41 [ 194 Cal.Rptr. 913]; Hagendorf v. Brown (9th Cir. 1983) 699 F.2d 478, 480.) However, a line of cases decided in the Courts of Appeal would carve out an exception to the privilege prescribed by section 47(2) for those communications not made for the purpose of promoting the "interest of justice."
Although the statute is most commonly asserted in actions for defamation, it applies to virtually all other causes of action, except malicious prosecution, based upon publication of assertedly offensive material. ( Ribas v. Clark (1985) 38 Cal.3d 355, 364 [ 212 Cal.Rptr. 143, 696 P.2d 637] [invasion of privacy]; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1124 [ 255 Cal.Rptr. 315] [intentional infliction of emotional distress].) Civil Code section 47 provides in pertinent part as follows: "A privileged publication or broadcast is one made: [ยถ] . . . [ยถ] (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law. . . . [ยถ] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested. . . ."
(155 Cal.App.3d at p. 223.) In Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1122-1123 [ 255 Cal.Rptr. 315], the same court held that the wife's attorney could not be sued in a separate action for malicious prosecution, after the attorney sought and then withdrew an order to show cause re contempt in the dissolution action. Husband's remedy was to seek attorney fees in the dissolution action under section 4370.5.
(6) We recently held in Silberg v. Anderson, supra, 50 Cal. 3d at page 212, that the privilege of section 47(2) 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 [has] some connection or logical relation to the action." (See, e.g., Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1124 [ 255 Cal.Rptr. 315]; Carney v. Rotkin, Schmerin McIntyre (1988) 206 Cal.App.3d 1513, 1521 [ 254 Cal.Rptr. 478]; Walsh v. Bronson (1988) 200 Cal.App.3d 259, 269 [ 245 Cal.Rptr. 888]; Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 772-773 [ 234 Cal.Rptr. 653]; Chen v. Fleming (1983) 147 Cal.App.3d 36, 41 [ 194 Cal.Rptr. 913]; Hagendorf v. Brown (9th Cir. 1983) 699 F.2d 478, 480.) (1b) Here, park management alleges that it suffered injury from the taping of confidential telephone conversations, not from any "publication" or "broadcast" of the information contained in these conversations.
Rushford v. New Yorker Magazine, Inc. (4th Cir. 1988) 846 F.2d 249, 253 [ First Amendment standards apply to issue of press access to documents filed in connection with a summary judgment motion in a civil case]; Copley Press, Inc. v. Superior Court (1992) 6 Cal.App.4th 106, 111 [ 7 Cal.Rptr.2d 841] [observing that the First Amendment provides "broad access rights to judicial hearings and records" and that a "lengthy list of authorities confirms this right in general, and in particular as it pertains to the press, both in criminal and civil cases" (fn. omitted)].) And, in Green v. Uccelli (1989) 207 Cal.App.3d 1112 [ 255 Cal.Rptr. 315], the court stated that: "The contents of the file of a divorce proceeding are 'historically and presumptively' a matter of public record." ( Id. at p. 1120; see also Lechowick, supra, 65 Cal.App.4th at p. 1414 ["[i]n general, court files in family law cases should be treated no differently than the court files in any other cases for purposes of considering the appropriateness of granting a motion to seal any of those files" (fn. omitted)]; In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298 fn. 3 [ 116 Cal.Rptr.2d 833] ["' NBC Subsidiary test applies to the sealing of records,' " quoting Judicial Council of Cal., Advisory Com. com. to Cal. Rules of Court, rule 243.1; rules 243.1 and 243.2 "were adopted to comply with the Supreme Court's decision"].)
All this means is that the section now applies to all types of proceedings identified in the Family Code. Particularly because the language of the section remained the same, it cannot mean that it now applies to such substantially different issues as, e.g., the sealing of court records. But the most definitive word on the application of section 214 comes from Green v . Uccelli (1989) 207 Cal.App.3d 1112 ( Green), a decision from Division Five of this district. Green involved a suit for, among other things, invasion of privacy.
(2) The tort of malicious prosecution requires the initiation of a full-blown action as well as its favorable termination for the malicious prosecution plaintiff; subsidiary procedural actions within a lawsuit such as an application for a restraining order or for a lien will not support a claim of malicious prosecution. (See 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, ยง 439, p. 522; Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 639 [ 255 Cal.Rptr. 18]; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1120 [ 255 Cal.Rptr. 315]; Silver v. Gold (1989) 211 Cal.App.3d 17, 24 [ 259 Cal.Rptr. 185].) The reason the courts have held that a malicious prosecution action cannot be grounded upon actions taken within pending litigation is that permitting such a cause of action would disrupt the ongoing lawsuit by injecting tort claims against the parties' lawyers and because the appropriate remedy for actions taken within a lawsuit lies in the invocation of the court's broad powers to control judicial proceedings.
Declining to expand the tort of malicious prosecution, a unanimous Supreme Court in Sheldon Appel, supra, 47 Cal.3d at page 873, observed: "While the filing of frivolous lawsuits is certainly improper and cannot in any way be condoned, in our view the better means of addressing the problem of unjustified litigation is through the adoption of measures facilitating the speedy resolution of the initial lawsuit and authorizing the imposition of sanctions for frivolous or delaying conduct within that first action itself, rather than through an expansion of the opportunities for initiating one or more additional rounds of malicious prosecution litigation after the first action has been concluded." (Accord Lossing v. Superior Court (1989) 207 Cal.App.3d 635, 638-640[ 255 Cal.Rptr. 18]; see also Tellefsen v. Key System Transit Lines, supra, 198 Cal.App.2d at p. 615 [Court of Appeal has remedies for frivolous appeals]; Green v. Uccelli (1989) 207 Cal.App.3d 1112, 1122-1123 [ 255 Cal.Rptr. 315] [preference for court hearing the order to show cause in a dissolution action to award sanctions if contempt proceeding is brought in bad faith].) Expanding the applicability of the abuse of process action, as proposed by appellant, would accomplish the result criticized in Sheldon Appel.