Weekly Law Resume: The Court Re-Affirms that the Litigation Privilege of Civil Code Section 47(b) is Absolute

by Low, Ball & Lynch

Leslie Falcon, et. al. v. Long Beach Genetics, Inc. et. al.

Court Of Appeal, Fourth District (March 18, 2014)

Civil Code Section 47(b), known as the litigation privilege, provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. It is intended to protect people before and during a lawsuit from claims that they have defamed the target of the lawsuit. This case considered whether statements, in the form of a paternity test conducted by a genetics lab, were protected under the litigation privilege.

Plaintiffs Leslie Falcon and Michael Patterson were unmarried parents of a minor daughter. In the fall of 2003, plaintiffs scheduled a free paternity test with the County of San Diego to confirm that the minor was Mr. Patterson’s child.  On September 26, 2003, the County commenced a paternity proceeding in the San Diego Superior Court.  In connection with this proceeding, Mr. Patterson agreed to provide a genetic specimen to the defendant Long Beach Genetics (LBG) lab, who was in contract with the County to perform such testing.  LBG’s testing location was at the superior court in downtown San Diego, and its family relationship testing was performed as part of its contractual relationship with the County. It collected DNA samples from Patterson and the Falcons in order to assist the County in determining the minor’s paternity.

In November of 2003, the test results were issued. The results excluded Mr. Patterson as the child’s father.  The test results were mailed to the parents and used by the County in the paternity proceeding.  The County also notified the plaintiff parents in 2004.   It turned out that the result was erroneous.  When the plaintiffs became aware of the error in 2008, they brought a complaint against the defendant lab for “negligence arising out of an erroneous deoxyribonucleic (DNA) test result used to determine the minor’s paternity.”

Defendant LBG sought summary judgment, based on the argument that the action was barred by Civil Code section 47, subdivision (b), the litigation privilege.  The trial court granted summary judgment, ruling that LBG performed the test in connection with the paternity proceedings initiated by the County, and plaintiffs’ alleged injuries arose from the laboratory’s communication of the test results to the parties in that action.  Plaintiffs appealed.

The Court of Appeal affirmed the trial court’s granting of summary judgment based on the litigation privilege.  The Court first noted the policies behind the privilege.  It noted that the litigation privilege is absolute and broadly applied regardless of malice. Its purposes are to  “afford litigants and witnesses free access to the courts without fear of being harassed subsequently by derivative tort actions, to encourage open channels of communication and zealous advocacy, to promote complete and truthful testimony, to give finality to judgments and to avoid unending litigation.” It also promotes effective judicial proceedings by encouraging full communication with the courts.  Accordingly, doubts as to whether the privilege applies are resolved in its favor.

The Court then noted that when considering whether the privilege applies, the threshold issue is whether the action seeks to litigate the defendant’s conduct that was communicative and thus privileged or conduct that was non-communicative and thus actionable.  Here, plaintiffs argued that the conduct at issue was the “non-communicative” negligently performed testing.    The Appellate Court disagreed based on the allegations of the complaint itself.  Plaintiffs’ allegations demonstrated that their injuries resulted from an act that was communicative in its essential nature:  the notification of the Court and the parents of the paternity test results.

The Court held that the non-communicative act of the DNA testing itself necessarily related to the communication” and thus also fell within the litigation privilege as it bore a logical relation to the privileged communication.

Further, the Court pointed out that even had plaintiffs reworded their complaint to focus on the testing, the result would not change.  The test results were communicated to the County and the parties for the logical object and purpose of the County’s paternity legal proceeding.

The Court disagreed with plaintiff that this holding would “afford absolute immunity to paternity testers.”  Rather, the Court’s ruling protected only those persons or entities conducting tests in connection with or contemplation of litigation (in this case, the paternity action by the County).  The Court held that this result was compelled by the breadth of the privilege and its purposes.


This case confirms that the privilege applies when the action complained of is communicative in nature, rather than wholly non-communicative.  As such, Section 47(b) remains a powerful defense tool in the appropriate case.

For a copy of the complete decision, see:


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