Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. CIV472277
Pollak, J.
Plaintiff Rudy D. Martin appeals from a judgment entered following the granting of defendant Lawrence Miller’s motion for summary judgment. Martin contends the court erred in concluding that his action for invasion of privacy is barred by the litigation privilege. (Civ. Code, § 47, subd. (b).) We shall affirm.
All statutory references are to the Civil Code unless otherwise noted.
Factual and Procedural History
Unless otherwise noted, the following facts are undisputed: In 2006, Miller, who is a licensed attorney, represented a plaintiff in an action against Martin in Monterey County. At the same time, Martin was a plaintiff in litigation pending in Santa Clara County. In the course of the Monterey action, Miller subpoenaed from Washington Mutual Bank Martin’s financial documents, including a loan application. Pursuant to an agreement, the documents produced by the bank were subject to a protective order prohibiting their disclosure. Subsequently, a redacted copy of the loan application was admitted into evidence in the Monterey action. The redacted copy of the document was not placed under seal nor was an additional protective order issued.
In September 2006, Miller gave a copy of the unredacted loan application to B. Douglas Robbins, counsel for the defendant in the Santa Clara action. Robbins submitted the document to the court in opposition to Martin’s request for a waiver of jury fees in the Santa Clara action. Following the disclosure of his loan application, Martin filed a motion in the Monterey County action asking the court to hold Miller in contempt for violation of the protective order. At the contempt hearing, Miller testified that he initially contacted Robbins to ascertain whether Robbins’ client would make a good witness in the Monterey action. In the course of their conversations, Robbins indicated that Martin had asked the court to waive his jury fees in the Santa Clara action. Miller thought this was surprising based on significant real estate holdings he had seen reflected in the loan application. Miller agreed to provide Robbins with a copy of the loan application and to testify if necessary. Miller claimed that he intended to give Robbins the redacted loan application, but inadvertently gave him the unredacted version. When the mistake was brought to his attention, Miller provided Robbins with the redacted version and Robbins returned the unredacted version.
In April 2008, Martin filed the present action alleging causes of action against Miller for invasion of privacy and conspiracy to invade his privacy. The complaint alleges that in September 2006, Miller, “through his influence as an attorney obtained personal financial information belonging to plaintiff. [¶] In that same time period, [Miller] was required by a court of competent jurisdiction to not reveal the information obtained to anyone other than for the purpose of the action in which the information was obtained. [¶] In that same time period, [Miller] released this information to other parties, not related to the case through which defendant obtained access to such information. [¶] This action was intentional and in violation of the right of privacy of plaintiff.”
Miller moved for summary judgment on the ground that his disclosure of the loan document was protected by the litigation privilege. Relying on Jacob B. v. County of Shasta (2007) 40 Cal.4th 948 (Jacob B.), the trial court agreed with Miller and granted his motion. Martin filed a timely notice of appeal.
Discussion
Standard of Review
“We review the trial court's grant of summary judgment de novo, applying the same statutory procedure followed in the trial court.” (Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 574.) Summary judgment is proper “if all the papers submitted show there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) If a defendant establishes that there is a complete defense to the plaintiff’s causes of action, the defendant has met the initial burden of showing that those causes of action have no merit, and “the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484.) A defendant may move for summary judgment on the ground that allegedly wrongful conduct is protected by the litigation privilege. (Hunsucker v. Sunnyvale Hilton Inn (1994) 23 Cal.App.4th 1498, 1501-1502, 1505; Code Civ. Proc., § 437c, subds. (a), (o)(2).)
The Litigation Privilege
Generally, a publication made in the course of a judicial proceeding is privileged under section 47, subdivision (b). “[T]he 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.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege “applies regardless of malice” and “bars a privacy cause of action whether labeled as based on common law, statute, or Constitution.” (Jacob B., supra, 40 Cal.4th at p. 955, 962.) “It is... well settled that the absolute privilege in both judicial and quasi-judicial proceedings extends to preliminary conversations and interviews between a prospective witness and an attorney if they are some way related to or connected with a pending or contemplated action.” (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 865; Jacob B., supra, at p. 955 [“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’ ”], quoting Silberg v. Anderson, supra, at p. 212.)
In Jacob B., the plaintiff filed an action for invasion of privacy against a supervisor in the Shasta County Victim Witness Program based on the supervisor’s allegedly improper disclosure of confidential information regarding plaintiff’s juvenile record. As a juvenile, plaintiff had been accused of molesting his nephew. He was not prosecuted for the alleged molestation but information regarding the incident was entered into the statewide computer database. Ten years later, at the request of the nephew’s mother, the defendant supervisor accessed information about the allegation in the computer system and included the information in a letter that the mother submitted to the court in pending family law proceedings. Holding that plaintiff’s privacy claims must be dismissed, the court found the letter fit “squarely within [the litigation] privilege. As the Court of Appeal explained, it ‘constituted a “communication.” It was made in the context of a judicial proceeding, i.e., a pending case in Tehama County. [The supervisor], who was the custodian of information relevant to the action, was a witness/participant. Finally, the letter furthered the objects of the litigation, since the information it conveyed had relevance to a family law visitation dispute.’ ” (Jacob B., supra, 40 Cal.4th at p. 956.) The court held explicitly that the “litigation privilege protects the February 21 letter even if we assume that the disclosure violated juvenile record confidentially laws.” (Id. at p. 958.)
Here, the undisputed facts establish that Miller disclosed Martin’s personal financial information to Robbins for use in the Santa Clara action, and that he was a potential witness when the disclosure was made. In his declaration, Miller states that Robbins told him that Martin had requested a waiver of jury fees in the Santa Clara action and asked if Miller had any “documents which reflected Mr. Martin’s ownership of assets.” Miller told him that he did and provided him with the loan application showing Miller’s ownership of two properties in California. The financial information was relevant to the Santa Clara action. As in Jacob B., the litigation privilege applies even on the assumption that the disclosure violated the Monterey court’s protective order. (See also O’Neil v. Cunningham (1981) 118 Cal.App.3d 466, 476 [litigation privilege barred client’s claim against his former attorney even though the publication violated a Rule of Professional Conduct and might subject attorney to disciplinary action by the State Bar].) Accordingly, Miller established that his allegedly wrongful disclosure of Martin’s personal financial information was protected by the litigation privilege.
Martin’s opposition to the summary judgment motion failed to rebut or raise a triable issue of fact as to Miller’s showing. Martin disputes the fact that Miller disclosed the information to Robbins for use in the Santa Clara County action by asserting that “Miller has stated, at times, that he did not know what use would be made of this loan application and it was inadvertently given” to Robbins. The 30 pages of Miller’s testimony cited by Martin does not support this assertion. As set forth above, Miller testified that he intended to give the redacted loan application to Robbins for use in the Santa Clara action but that he inadvertently gave him the unredacted copy. Miller’s remaining allegedly disputed facts are not material. (Riverside County Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653 [“To be ‘material’ for purposes of a summary judgment proceeding, a fact must relate to some claim or defense in issue under the pleadings, and it must also be essential to the judgment in some way”].)
Contrary to Martin’s argument, the litigation privilege disposes of both of his causes of action. Although Martin’s complaint alleges only that he was injured by the release of his personal information to parties not connected with the Monterey action, he now argues that “[t]he gravamen of this action is not the [disclosure to Robbins], it was the intrusion into plaintiff’s privacy by defendant improperly taking private documents in Monterey for his later use.” This argument reflects a shift from that presented in the trial court and is outside the scope of the of the summary judgment motion as defined by the allegations of the complaint. (Whelihan v. Espinoza (2003) 110 Cal.App.4th 1566, 1576[“The complaint serves to delimit the scope of the issues before the court on a motion for summary judgment [citation], and a party cannot successfully resist summary judgment on a theory not pleaded”].) In any event, nothing in the record suggests that Martin obtained the loan document in an illegal or improper manner. The loan application was properly obtained in the course of discovery in the Monterey action. Although delivery of the unredacted document to counsel in the Santa Clara County action apparently violated the terms of a protective order, that transgression, if it was such, does not show that the document was obtained improperly but only that it was improperly transmitted, conduct that comes within the scope of the litigation privilege. For this reason, Ribas v. Clark (1985) 38 Cal.3d 355, 365 [privilege does not apply to act of eavesdropping], Kimmel v. Goland (1990) 51 Cal.3d 202, [privilege does not apply to secret tape recording of telephone conversations] and Mansell v. Otto (2003) 108 Cal.App.4th 265 [illegal reading of mental health records not a protected activity], cited by Martin, are distinguishable.
Although portions of the transcript from the contempt hearing are contained in the record before us, the court’s final order in those proceedings is not included. It appears from subsequent hearings that the court did not find Miller in contempt.
Finally, Martin was not prejudiced by Miller’s allegedly late reply brief and supplemental evidentiary objections. Nor did the court err by not denying the motion under Code of Civil Procedure section 437c, subdivision (h). On January 27, 2009, Martin submitted a letter to the court complaining that (1) Miller had directed certain witnesses not to appear for their scheduled depositions, (2) Miller had failed to serve his rely brief within five days of the January 29 hearing, and (3) Miller indicated he was intending to file additional evidentiary objections. Martin requested that the court strike the reply brief and deny defendant’s motion under Code of Civil Procedure section 437c, subdivision (h). His affidavit submitted with his letter states that Miller’s reply brief was mailed on January 24, not January 23 as reflected in the proof of service. Martin acknowledges that he received the reply brief on January 27, and the record reflects that Miller’s supplemental evidentiary objections were filed on January 26. The record also demonstrates that the January 29 hearing was continued until February 18 so that Martin would have time to respond to the supplemental objections and authority cited by Miller at the January 29 hearing. Martin submitted a supplemental brief on February 17 and when he appeared at the hearing the following day he did not assert any additional objections to the allegedly late submissions. Martin fails to explain in his appellate brief how he might have been prejudiced by the timing of Miller’s filings. Based on our review of the record, we find no signs of prejudice.
Code of Civil Procedure section 437c, subdivision (h) provides: “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just. The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due.”
Martin’s argument that the court should have denied the motion under Code of Civil Procedure section 437c, subdivision (h) is similarly unavailing. Martin’s argument on this issue is in full as follows: “As given in... [his] letter to the court on January 27, 2009, not all evidence could be made available for the summary judgment, and this was due to defendant obstructing evidence being made available. This court should take notice of this and, per Code of Civil Procedure section 437c, subdivision (h) deny this summary judgment.” Earlier in his brief, Martin offers the conclusory statement that Martin “went to exceptional lengths to obstruct [his] obtaining testimony and the evidence that would contradict the claims he and B. Douglas Robbins made in their declarations.” Martin does not elaborate, however, on why the witnesses’ failure to appear for their depositions was improper, what evidence he reasonably anticipated he would obtain, or how the absence of that evidence was prejudicial.
Disposition
The judgment is affirmed. Miller is to recover his costs on appeal.
We concur: McGuiness, P. J. Siggins, J.