CACI No. 1605. Intentional Infliction of Emotional Distress - Affirmative Defense - Privileged Conduct

Judicial Council of California Civil Jury Instructions (2023 edition)

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1605.Intentional Infliction of Emotional Distress - Affirmative
Defense - Privileged Conduct
[Name of defendant] claims that [he/she/nonbinary pronoun] 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/nonbinary
pronoun] legal right to [insert legal right]] [or] [protecting [his/her/
nonbinary pronoun] 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/nonbinary pronoun] had a legal right to engage in the
If you find all of the above, then [name of defendant]’s conduct was
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
“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 creditors 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
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 529, 530
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)
1606-1619. Reserved for Future Use

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