Can a plaintiff recover emotional distress from a misrepresentation made by respondent in a deposition?

Furthermore, appellant alleges that respondent's conduct at the deposition, in confirming her previous conduct, was done to increase his emotional distress. Since appellant's emotional distress was predicated on respondent's [210 Cal.App.3d 1271] statement and the statement itself was alleged to be tortious, no matter what respondent's motives may have been, her statement was privileged under Civil Code section 47, subdivision (2). (Oren Royal Oaks Venture v. Greenberg,

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Appellant argues that it is not what respondent said at the deposition that is the subject of the emotional distress cause of action, but what she did during the marriage that is actionable. However, appellant overlooks the proximate cause element of this tort. In order to suffer emotional distress from respondent's conduct, it was necessary for appellant to know about it. This cause of action could not accrue until appellant suffered appreciable and actual harm. (See Davies v. Krasna (1975) 14 Cal.3d 502, 514, 121 Cal.Rptr. 705, 535 P.2d 1161.) That harm, although not recoverable for policy reasons heretofore discussed, in fact occurred in a privileged litigation setting. The tort was not completed prior to the litigation but during the litigation. Even if it were possible for appellant to craft a complaint for future emotional distress, by successfully divorcing the future emotional distress from the disclosure of the misrepresentation in a privileged litigation setting, we would still be compelled to hold that public policy precludes such future recovery.