In what circumstances will litigation privilege apply to a constitutional cause of action for invasion of privacy?

We turn now to a subject that we addressed 14 years ago in Cutter v. Brownbridge, supra, 183 Cal.App.3d 836-the application of the litigation privilege of Civil Code section 47, subdivision (b) (then section 47(2)), to a constitutional cause of action for invasion of privacy. We held in Cutter that the application of the litigation privilege in this constitutional context calls for a balancing of interests, despite the unqualified application of the privilege in other legal contexts. We will review first the general principles governing the litigation privilege and then consider the background of the Cutter decision and its continued viability.

Civil Code section 47 accords an immunity for statements made in a number of contexts related to legislative, judicial, or other official proceedings. We are concerned here only with statements that come within the aegis of section 47, subdivision (b)(2), "which provides an absolute privilege to statements made in 'any judicial proceeding' -the provision more commonly referred to as the 'litigation privilege.' " (Moore v. Conliffe (1994) 7 Cal.4th 634, 641.) The Moore decision established authoritatively that the litigation privilege applies to statements made in a private, contractual arbitration proceeding. There can therefore be no doubt that it applies to the present litigation, which was commenced by a complaint for personal injuries and later referred to arbitration.