Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Gregory W. Alarcon, Judge. Los Angeles County Super. Ct. No. BC375217
Luis A. Carrillo and John Henrichs for Plaintiff and Appellant.
Gutierrez, Preciado & House and Calvin House, in pro. per., for Defendants and Respondents.
TURNER, P. J.
I. INTRODUCTION
Plaintiff, J.A., a minor by and through his guardian ad litem Cecilia Cruz, appeals from an order dismissing their first amended complaint for damages for a violation of Education Code section 49076 and negligence against defendants, the law firm of Gutierrez, Preciado & House, LLP (the firm) and two of its partners, Calvin R. House and Arthur C. Preciado. Plaintiff’s first amended complaint was dismissed in response to defendants’ Code of Civil Procedure section 425.16 special motion to strike. The parties have discussed at length issues concerning the privacy of the minor’s school records which were disclosed to defendants by a codefendant, the Los Angeles Unified School District (the district), in an underlying federal lawsuit filed by plaintiffs against the City of Los Angeles (the city) and its Chief of Police, William Bratton. We need not address the parties’ discussion concerning Education Code section 49076 as plaintiff’s claims arise out of petitioning related activity and all of defendants’ conduct is subject to the Civil Code section 47, subdivision (b)(2) absolute litigation privilege. We thus affirm the dismissal order.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
II. BACKGROUND
The first amended complaint sought damages under the following legal theories: violation of Education Code section 49076 (first); negligence (second); and respondeat superior (third). The respondeat superior theory was asserted only against the district which was sued in this lawsuit as in the underlying action. The first amended complaint alleged: the district wrongfully released the information to the defendants; defendants represented the district; and the district and the law firm then improperly disclosed the information to the attorneys in the Office of the City Attorney of Los Angeles. The first amended complaint also alleged in part: “31. The disclosure of the confidential ‘Pupil Record’ was also an invasion into [the minor’s] privacy because the confidential records contained private facts and outrageous, unproven, hearsay allegations of a sensitive nature. The confidential ‘Pupil Record’ also included outrageous, false allegations against the minor by his school teacher. These comments concerned intimate details of a child’s life and were not a legitimate matter of public concern. Defendants released the confidential records of [the minor] containing these outrageous, unproven, hearsay allegations of a sensitive nature to persons that were unauthorized to see them to know their contents, such as attorneys [from the City Attorney’s office]. The Defendants disclosed the confidential ‘Pupil records’ containing these outrageous, unproven, hearsay allegations of a sensitive nature in a careless and negligent manner. The information in these highly sensitive records has now been seen by various individuals, and published to the public in a public courtroom, in a manner that would humiliate an average individual, and especially an [eight-year-old] child such as [the minor]. [¶] 32. Further, the release of information in these confidential records to non-school district employees and to public persons through the deposition process has caused [the minor] to experience severe emotional trauma.”
On October 5, 2007, defendants filed the section 425.16 special motion to strike. Defendants argued the causes of action asserted in the first amended complaint arose from acts in furtherance of the right to petition or free speech. This is because the first amended complaint alleges that information from the records was “published to the public in a public courtroom” and was released through the deposition process. Defendants further argued the Civil Code section 47, subdivision (b)(2) litigation barred the action. Defendants also asserted: they did not disclose any information outside the context of the litigation; Education Code section 49706 did not impose a duty on attorneys to refrain from using pupil records in litigation; the Legislature did not intend for students to recover damages for violation of Education Code section 49076; and there was no negligence claim because attorneys do not owe a duty of care to their client’s adversaries.
Mr. Preciado declared that he is a partner of the firm, which has a contract with the school district to provide legal services on certain matters. On September 12, 2005, the minor and Ms. Cruz, acting as his guardian, filed the federal lawsuit. In early October 2005, the district’s Office of Risk Management informed Mr. Preciado that Ms. Cruz, on behalf of the minor, had filed the federal complaint on September 12, 2005. In February 2006, the school district forwarded copies of the federal court summons and complaint that had been served on Joe Nardulli, a school district employee. Mr. Nadulli was the principal of the school that the minor attended at the time of the incident which was the subject of the federal lawsuit. The federal complaint alleged that when the minor was seven years old, he attended Union Avenue elementary school. On August 16, 2005, Mr. Nardulli telephoned the Los Angeles Police Department. This occurred after a teacher had spoken to Mr. Nardulli about the minor. The federal complaint alleged Mr. Nardulli: called the police without talking to or observing the minor; failed to call the minor’s mother prior to calling the police; and allowed the police to handcuff, physically abuse, and mistreat the minor.
On August 3, 2006, Mr. Preciado took the first session of the minor’s deposition. Mr. Preciado had copies of some documents from the minor’s student records at the deposition to refer to during questioning and for possible use as exhibits. Mr. Preciado had obtained the records from the district’s risk management firm, Carl Warren & Co., sometime after the lawsuit was assigned to defendants. Mr. Preciado did not use any of the documents but showed them to Susan Kawala, who was an attorney for the two codefendants in the federal action, the city and Chief Bratton. Mr. Preciado declared: “Except for the circumstances described in the preceding paragraphs of this declaration, I did not disclose [the minor’s] records or any of the information contained in them to anyone other than employees of the school district and its third party administrator. Any communications to the school district and the third party administrator about information contained in [the minor’s] student records were part of my legal advice about the lawsuit.”
Mr. House declared that he is a partner of the firm. In September 2006, Mr. House became the lead counsel in the 2005 federal lawsuit. As part of the pre-trial proceedings, Mr. House disseminated an exhibit list for the school district. Exhibit 200 was a description of documents drawn from the minor’s student records. Plaintiffs’ counsel objected to the use of the documents as exhibits. Thereafter, Mr. House removed them from the exhibit binders. The federal court allowed Mr. House to use an emergency information card as a trial exhibit. Mr. House did not offer any other student records at trial. The trial resulted in a unanimous defense verdict. Mr. House declared: “Except for the circumstances described in the preceding paragraphs of this declaration, I did not disclose [the minor’s] records or any of the information contained in them to anyone other than employees of the school district and its third party administrator. Any communications to the school district and the third party administrator about information contained in [the minor’s] student records were part of my legal advice about the lawsuit.”
Rachel M. Pimentel declared that she is an associate at the firm. In the course of her work on the lawsuit, Ms. Pimentel reviewed the minor’s student records which had been provided by the district. Ms. Pimentel also reviewed some of the minor’s medical records which had been subpoenaed by the law firm with Ms. Cruz’s authorizations. Some of the medical records were provided by the minor’s counsel as part of the discovery process in the federal lawsuit.
Ms. Pimentel represented Mr. Nardulli at the minor’s and Ms. Cruz’s depositions which were taken on November 9, 2006. Ms. Pimentel took copies of the minor’s student and medical records with her to refer to during questioning and for use as exhibits. Ms. Pimentel made the documents available for use to Ms. Kawala, who was representing the city and Chief Bratton. Ms. Kawala identified some of the documents as exhibits on the record of the minor’s deposition. Ms. Pimentel identified certain of the documents as exhibits on the record of Ms. Cruz’s deposition. Ms. Pimentel declared: “Except for the circumstances described in the preceding paragraphs of this declaration, I did not disclose [the minor’s] records or any of the information contained in them to anyone other than employees of the school district and its third party administrator. Any communications to the school district and the third party administrator about information contained in [the minor’s] student records were part of my legal advice about the lawsuit.”
In opposition to the special motion to strike, plaintiff filed a number of evidentiary objections to defendants’ evidence. Plaintiff argued his confidential student records were first disseminated by Mr. Nardulli to another codefendant named in this lawsuit, Robin Holmes, in the months of November or December 2006. The initial release of the records was done pursuant to an agreement and conspiracy between the school district and its agents and employees, Mr. Nardulli, Mr. Preciado, and Ms. Kawala. Plaintiff contended that obtaining the confidential student records was an invasion of his privacy rights in that there were “private facts and outrageous, unproven, hearsay allegations of a sensitive nature.” Plaintiff further argued that the student records contained outrageous and false allegations. The allegations had been made by the minor’s schoolteacher. The allegations consisted of intimate details about the minor’s private life and which were not a legitimate matter of public concern.
Plaintiff argued defendants were not entitled to the protection of section 425.16 because the student records were made prior to the commencement of any litigation. Although conceding that defendants may have used the documents in litigation, plaintiff argued that this was not the harm addressed in the first amended complaint. The gravamen of the first amended complaint is that Education Code section 49076 establishes that the school records are confidential and can only be obtained: by persons qualifying under the statute; with parental consent; by judicial order; or without parental consent, if there is a relevant legitimate educational interest and they are obtained by the specified persons for specified uses. Citing two cases involving illegal eavesdropping, Kimmel v. Goland (1990) 51 Cal.3d 202 and Ribas v. Clark (1985) 38 Cal.3d 355, plaintiff further argued that the litigation privilege did not protect defendants from illegally obtaining documents in violation of the minor’s privacy rights. This is because the original harm was not the use of records at trial or at the deposition but the fact defendants “illegally obtained confidential information” in the first instance. Relying on Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 832, plaintiff argued that the Education Code created a cause of action and imposed a duty on unauthorized persons including attorneys to refrain from obtaining student records. The Education Code provides for a constitutional right of privacy.
Also, Luis A. Carillo declared that he had represented plaintiff in the federal case. On August 4, 2006, Mr. Preciado deposed plaintiff. During the deposition, plaintiff was asked about his sexual knowledge. Plaintiff was eight years old at the time. On November 9, 2006, at Ms. Cruz’s deposition, Mr. Carillo became aware that the city attorney’s office had the confidential student records. Ms. Pimentel questioned Ms. Cruz about certain documents and produced three documents as exhibits. The documents were produced without the minor’s mother’s consent nor pursuant to a court order. Mr. Nardulli was deposed on November 10, 2006. Mr. Nardulli confirmed that the documents had gone from his office to the risk management firm representing the district. The documents had been provided to Mr. Holmes. Mr. Holmes then provided the documents to defendants. Then, defendants provided the documents to the city attorney’s office. The city listed as a trial exhibit in the federal action an SST Summary Form dated August 14, 2003 involving a parent and teacher conference with Ms. Cruz. The city also listed an additional SST Summary Form dated August 8, 2003. Ms. Kawala sought to introduce the August 8, 2003 form as an exhibit but the federal judge sustained plaintiff’s objection. The documents would most likely have been seen by law clerks and secretaries making copies and preparing the matter for litigation.
In reply to the opposition, defendants argued that plaintiff had failed to establish that the special motion to strike was inapplicable to their actions. According to defendants, the gist of the first amended complaint was the moving defendants damaged plaintiff by disclosing his records in the earlier federal lawsuit. Defendants noted that the opposition papers conceded: the moving defendants had used the records in litigation at depositions; the records were given to the city at Ms. Cruz’s deposition; and the records were listed as trial exhibits. The law firm argued: plaintiff essentially conceded that the litigation privilege barred his attempt to hold the moving defendants liable for their disclosure of the records; plaintiff did not overcome defendants’ showing that the gist of the action is barred by the litigation privilege; the opposition did not overcome defendants’ showing there is no merit to the cause of action for violation of the Education Code; plaintiff cannot assert the first amended complaint contained a constitutional right of privacy without having sufficiently alleged it in response to the special motion to strike as opposed to a demurrer; and plaintiff did not establish any basis for imposing a negligence duty on the attorneys for actions taken against their client’s adversaries.
On October 31, 2007, after taking the matter under submission, the trial court granted the special motion to strike. In granting the special motion to strike, the trial court ruled: “Under California law, a school district may not permit access to pupil records to any person, subject to exceptions not applicable here. (Ed. Code § 49076; Rim of the World Unified School Distr. v. Superior Court (2002) 104 Cal.App.4th 1393, 1396.) Similarly the Family Educational Rights and Privacy Act (FERPA), 20 [United States Code section] 1232g mandates that educational institutions protect the confidentiality of student records, including student disciplinary records. (20 U.S.C. § 1232g; Rim of the World Unified School Dist. [v. Superior Court, supra,] 104 Cal.App.4th at [pp.] 1397-1399, citing U.S. v. Miami University (6th Cir. 2002) 294 F.3d 797, 812.) [¶] Under the FERPA, schools cannot divulge students’ records without a signed authorization from a parent of a student of majority [age]. (20 U.S.C. § 1232g(1).) Educational institutions that violate the FERPA’s mandate may lose future federal funding and face possible federal civil liability. ([Ibid]; Rim of the World Unified School Dist. [v. Superior Court, supra,] 104 Cal.App.4th at [p.] 1398.) [¶] Here, the complaint is for (1) Violation of Education Code [section] 49706, (2) Negligence [and] (3) Respondeat Superior. The moving defendants herein as the school district’s agents were hired to handle litigation matters. Plaintiff herein filed a claim against the school district. The lawyers, as the school [district’s] agents (as admitted by [plaintiff]) were given access to certain records in defending the case. The trial resulted in a verdict for the school district. This suit followed because as alleged the school [district’s] agents were given access to certain school records in defending the underlying action. [¶] Defendants have met there burden under Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15. They show it was in the furtherance of the right of petition because it directly relates to the defense of the underlying action where they were the actual agents of the school district. [¶] The burden then shifts to plaintiff to show a probability of prevailing on the claim. (Mann v. Quality Old Time Service, Inc. (2002) 120 Cal.App.4th 90, 106.) Here the [plaintiff fails]. [¶] To establish such a probability of success, a plaintiff must demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts, which, if credited by the trier of fact, is sufficient to sustain a favorable judgment. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) The Court considers the pleadings and supporting and opposing declarations stating the facts upon which the liability or defense are based. (§ 425.16, [subd.] (b)(2); [Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67].) As with a summary judgment motion, the Court does not weigh the conflicting evidence nor resolve credibility issues, but only determines whether plaintiff’s proffered evidence would support a decision [in] his or her favor. (Kashian v. Harriman [(2002)] 98 Cal.App.4th 892, 906.) Whether plaintiff has met this burden is question of law. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) [¶] Since [plaintiff] conclusively pled that the moving defendants were the actual agents of the school district and the school district, as a legal entity and not a person, can only act through its agents, [plaintiff has] not shown a probability of success on the merits. The school district had a right to defend itself and had legal access to the pupil’s records and therefore by logical extension, its agents had access too.” The order of dismissal was entered on January 9, 2008 after the notice of appeal was filed. We deem the premature notice of appeal to be timely. (Cal. Rules of Court, rule 8.104 (e); In re Marriage of Nicholson and Sparks (2002) 104 Cal.App.4th 289, 291, fn. 1.)
III. DISCUSSION
A. Special Motion to Strike Standards
Under section 425.16, any cause of action against a person “arising from any act . . . in furtherance of the . . . right of petition or free speech . . .” in connection with a public issue must be stricken unless the court finds a “probability” that the plaintiff will prevail on whatever claim is involved. (§ 425.16, subd. (b)(1); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1415; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783.) Section 425.16, subdivision (e) provides: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” In order to protect the constitutional rights of petition and free speech, the statute is to be construed broadly. (§ 425.16, subd. (a); Kibler v. Nothern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192, 199; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1119-1121.)
When a special motion to strike is filed, the trial court must consider two components. First, the moving party has the initial burden of establishing a prima facie case that the plaintiff’s cause of action arose out of the defendant’s actions in the furtherance of the rights of petition or free speech. (§ 425.16, subd. (b)(1); Flatley v. Mauro (2006)39 Cal.4th 299, 314; Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673; Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1042-1043; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App .4th at p. 783.) Section 425.16 does not apply to every claim which may have some tangential relationship to free expression or petition rights. The Supreme Court has held: “[Section 425.16] cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ [Citations.]” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76-77, quoting ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1002.) Quoting from ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at page 1002, the Supreme Court in City of Cotati v. Cashman, supra, 29 Cal.4th at page 77 explained: “California courts rightly have rejected the notion ‘that a lawsuit is adequately shown to be one “arising from” an act in furtherance of the rights of petition or free speech as long as suit was brought after the defendant engaged in such an act, whether or not the purported basis for the suit is that act itself.’ [Citation.]” A defendant who meets the burden of showing the cause of action arises out of the exercise of the rights of petition or free speech has no additional burden of proving either plaintiff’s subjective intent to chill (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 74-76; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 58-68) or a chilling effect. (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 74-76.)
Second, once the defendant establishes the complaint’s claims arise out of the exercise of petition or free expression rights, the burden shifts to the plaintiff. The plaintiff must then establish a probability that he or she will prevail on the merits. (§ 425.16, subd. (b)(1); Flatley v. Mauro, supra, 39 Cal.4th at p. 314; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115; Kyle v. Carmon (1999) 71 Cal.App .4th 901, 907; Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1450; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at pp. 784-785.) The Supreme Court has defined the probability of prevailing burden as follows: “‘[T]he plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of the facts to sustain a favorable judgment if the evidence submitted by plaintiff is credited.”’ (Wilson v. Parker, Covert & Chidester[, supra, ] 28 Cal.4th [at p.] 821, quoting Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)” (Navellier v. Sletten, supra, 29 Cal.4th at pp. 88-89; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1123.) In reviewing the trial court’s order granting the motion, we use our independent judgment to determine whether defendants were engaged in a protected activity (Flatley v. Mauro, supra, 39 Cal.4th at pp. 325-326; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055) and whether plaintiffs met their burden of establishing a probability of prevailing on their claims. (Monterey Plaza Hotel v. Hotel Employees & Restaurant Employees (1999) 69 Cal.App.4th 1057, 1064; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653, disapproved on another point in Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 68, fn. 5.)
B. Defendants’ Burden
The first question to be resolved is whether defendants met their initial burden of showing the gravamen of the first amended complaint arose from the exercise of their free speech or petition rights. In this case, the first amended complaint asserts that the school district through its risk manager wrongfully gave information to defendants. It is further alleged defendants then: wrongfully disseminated the information at depositions; gave the information to co-defendants in the federal lawsuit; and the information was utilized during the federal trial. The causes of action arise directly from communications between the district and its lawyers. Moreover, the causes of action involve communications with counsel for co-defendants about a pending federal action. An attorney’s action taken on behalf of a client in connection with litigation is protected as a communication made in connection with an issue under consideration or review by a judicial body. (§ 425.16, subd. (e)(2); see Navellier v. Sletten, supra, 29 Cal.4th at pp. 89-90 [filing a lawsuit]; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115 [right to petition includes filing litigation or seeking administrative action]; Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 489 [claim of improper solicitation of client was protected where the complaint was based on communications an attorney had with the client regarding pending litigation against the client]; Kashian v. Harriman, supra, 98 Cal.App.4th at pp. 907-908 [attorneys acts or statements made in connection with environmental litigation was protected statement]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at pp. 783-784 [attorney’s actions in sending a letter to solicit support in anticipation of an official hearing or proceeding was protected].) Defendants’ actions do not merely arise from litigation related conduct; they are inextricably bound up in petition related activities and are thus subject to section 425.16. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733 [attorney in malicious prosecution case could assert section 425.16]; Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115 [communications preparatory to or in anticipation of litigation are protected under section 425.16]; Kashian v. Harriman, supra, 98 Cal.App.4th at pp. 907-908 [acts or statements made by attorney in lawsuit subject to protection under section 425.16]; Dowling v. Zimmerman, supra, 85 Cal.App.4th at p. 1420 [attorney established initial burden by showing conduct involved a stipulated settlement and writing on client’s behalf in connection with pending litigation].) As such, defendants met their threshold burden of showing the gravamen of plaintiff’s claims arise from litigation conduct. There is no merit to plaintiff’s mixed claims contentions—the gravamen of their claim is core litigation conduct on defendants’ part.
C. Plaintiff’s Burden
Plaintiff argues the disclosure of the minor’s records to the risk management firm, the defendants in the federal lawsuit, and ultimately to the city’s lawyers violated his rights under Education Code section 49076 and invaded his constitutional privacy right. Education Code section 49076 prohibits a school district from allowing access to pupil records without written parental consent or under judicial order except under very specific circumstances. The parties agree that there is no applicable exception to disclosure under the specific language of Education Code section 49076. For the reasons stated below, plaintiff has failed to establish a probability of prevailing on the merits because the dissemination of the documents is subject to the litigation privilege.
The undisputed evidence is plaintiff sued the school district, the city, and Chief Bratton because the minor was allegedly wrongfully arrested at school. The documents were reviewed by the city’s risk management firm. The documents were transmitted, i.e., communicated, to defendants solely for use in the pending federal litigation. Defendants brought the records to the minor’s and Mrs. Cruz’s deposition. The documents were given, i.e., communicated, to the co-defendants’ counsel in the course of the federal litigation. The city also unsuccessfully tried to introduce the documents during the federal trial. This is the actionable conduct alleged in the first amended complaint. Because the documents were produced by defendants solely in the litigation context after the federal lawsuit was filed, their production is subject to the litigation privilege in Civil Code section 47, subdivision (b)(2). The Supreme Court has held: “The privilege ‘applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.’ [Citations.] ‘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.’ [Citation.]” (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 955; see also Rusheen v. Cohen, supra, 37 Cal.4th at p. 1057; Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The litigation privilege applies to an action based on a statutory or the constitutional privacy right. (Jacob B. v. County of Shasta, supra, 40 Cal.4th at pp. 960-961; see also Ribas v. Clark, supra, 38 Cal.3d at p. 364.) Even though the documents might otherwise be deemed confidential, the communications, i.e., the disclosures made as part of the litigation process after the federal lawsuit was filed, are subject to the absolute litigation privilege of Civil Code section 47, subdivision (b). (Action Apartment Assn. Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1249-1251; Jacob B. v. County of Shasta, supra, 40 Cal.4th at pp. 956-961; see Rusheen v. Cohen, supra, 37 Cal.4th at p. 1058.) We need not address the parties’ additional contentions.
IV. DISPOSITION
The order is affirmed. Defendants, the law firm of Gutierrez, Preciado & House, LLP, Calvin R. House, and Arthur C. Preciado, shall recover their costs and attorney fees from plaintiff, J.A., a minor by and through his guardian ad litem, Cecilia Cruz.
We concur: ARMSTRONG, J. KRIEGLER, J.