Randy Quaid, et ux. v. Craig Granet, et al.

California's litigation privilege protects communications made in judicial proceedings. California's Supreme Court has also held that the privilege does not bar claims based on independent, antecedent, noncommunicative wrongful conduct undertaken to gather evidence for litigation. Kimmel v. Goland, 51 Cal. 3d 202 (1990). The same court has explained that the threshold inquiry is the claim's "gravamen”: if the injury arises from a protected litigation communication, the privilege applies; if an independent noncommunicative wrongful act is the gravamen, it does not. Rusheen v. Cohen, 37 Cal. 4th 1048 (2006); Jacob B. v. County of Shasta, 40 Cal. 4th 948 (2007). Petitioners alleged that restricted law-enforcement database material—including criminal history, warrant-status, mug-shot, and jail-record information—was accessed, retrieved, received, possessed, and routed from a sheriff/prosecutor channel to private civil counsel for an unofficial private civil-litigation purpose, without subpoena, discovery request, court order, or law-enforcement purpose. The Ninth Circuit nevertheless held that Petitioners' privacy claims "all stem” from obtaining and later disclosing those records in a judicial proceeding and affirmed dismissal with prejudice because amendment would be futile under California Civil Code section 47(b). The question presented is: Whether a federal court, at the Rule 12(b)(6) and Rule 15 futility stages, may apply California Civil Code section 47(b)'s litigation privilege as a categorical bar to amendment of privacy claims directed to alleged antecedent unauthorized access, retrieval, acquisition, receipt, and possession of restricted law-enforcement database material, solely because that material was later used in a judicial proceeding.