Extortion: Sample Instruction on Affirmative Defense of Litigation Privilege
February 13th, 2020

In People v. Toledano DEPUBLISHED (2019) 36 Cal.App.5th 715 (G051787) a jury convicted Toledano of conspiracy to commit extortion and attempted extortion. The Court of Appeal reversed the judgment because the trial court prejudicially erred by not instructing the jury on Toledano’s affirmative defense that his actions were protected under the litigation privilege.


The Court of Appeal suggested the following language for such an instruction:


“The litigation privilege may be a defense to the charged crimes. The defendant is not guilty of the charged crimes if the litigation privilege applies to his communications. The defendant’s communications are protected by the litigation privilege if:

“1. The communication was made in a judicial or quasi-judicial proceeding;


“2. The communication was made by litigants or other participants authorized by law;


“3. The communication was made to achieve the objects of the litigation;


“4. The communication had some connection or logical relation to the action.

“Although the litigation privilege applies to communications made in a judicial proceeding, the litigation privilege is not limited to statements made in a courtroom. It encompasses not only testimony in court and statements made in pleadings, but also statements made prior to the filing of a lawsuit.

“A prelitigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration.”


However, because the CSC denied review and ordered that Toledano not be published, that opinion cannot be cited to support a request for a litigation privilege instruction such as the one quoted above.


Nevertheless, as the Toledano Court observed, the language of the proposed litigation privilege instruction tracks language in the Supreme Court’s decisions in Silberg (1990) 50 Cal.3d 205, 212, Action Apartment (2007) 41 Cal.4th 1232, 1251, and Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361.

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