California Civil Jury Instructions (CACI)

1605. Intentional Infliction of Emotional Distress—Affirmative Defense—Privileged Conduct

[Name of defendant] claims that [he/she] is not responsible for [name of plaintiff]’s harm, if any, because [name of defendant]’s conduct was permissible. To succeed, [name of defendant] must prove all of the following:

1. That [name of defendant] was [exercising [his/her] legal right to [insert legal right]] [or] [protecting [his/her] economic interests];

2. That [name of defendant]’s conduct was lawful and consistent with community standards; and

3. That [name of defendant] had a good-faith belief that [he/ she] had a legal right to engage in the conduct.

If you find all of the above, then [name of defendant]’s conduct was permissible.

New September 2003

Directions for Use

Whether a given communication is within the privileges afforded by Civil Code section 47 is a legal question for the judge.

Sources and Authority

  • “Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendants’ conduct was unprivileged.” (Fletcher v. Western National Life Insurance Co. (1970) 10 Cal.App.3d 376, 394 [89 Cal.Rptr. 78].)
  • The statutory privileges that Civil Code section 47 affords to certain oral and written communications are applicable to claims for intentional infliction of emotional distress. (Agostini v. Strycula (1965) 231 Cal.App.2d 804, 808 [42 Cal.Rptr. 314].)
  • “The usual formulation is that the [litigation] 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 [266 Cal.Rptr. 638, 786 P.2d 365].)
  • “Where an employer seeks to protect his own self-interest and that of his employees in good faith and without abusing the privilege afforded him, the privilege obtains even though it is substantially certain that emotional distress will result from uttered statements.” (Deaile v. General Telephone Co. of California (1974) 40 Cal.App.3d 841, 849—850 [115 Cal.Rptr. 582].)
  • “Nevertheless, the exercise of the privilege to assert one’s legal rights must be done in a permissible way and with a good faith belief in the existence of the rights asserted. It is well established that one who, in exercising the privilege of asserting his own economic interests, acts in an outrageous manner may be held liable for intentional infliction of emotional distress.” (Fletcher, supra, 10 Cal.App.3d at p. 395, internal citations omitted.)
  • “While it is recognized that the creditor possesses a qualified privilege to protect its economic interest, the privilege may be lost should the creditor use outrageous and unreasonable means in seeking payment.” (Bundren v. Superior Court (1983) 145 Cal.App.3d 784, 789 [193 Cal.Rptr. 671].)
  • “In determining whether the conduct is sufficiently outrageous or unreasonable to become actionable, it is not enough that the creditor’s behavior is rude or insolent. However, such conduct may rise to the level of outrageous conduct where the creditor knows the debtor is susceptible to emotional distress because of her physical or mental condition.” (Symonds v. Mercury Savings & Loan Assn. (1990) 225 Cal.App.3d 1458, 1469 [275 Cal.Rptr. 871], internal citations omitted.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, § 455

4 Levy et al., California Torts, Ch. 44, Intentional Infliction of Emotional Distress, § 44.06 (Matthew Bender)

32 California Forms of Pleading and Practice, Ch. 362, Mental Suffering and Emotional Distress, § 362.10[8] (Matthew Bender)

15 California Points and Authorities, Ch. 153, Mental Suffering and Emotional Distress, § 153.27 (Matthew Bender)