Talk about the Court of Appeal doing work for one of the parties! Check this out.
Plaintiff files a lawsuit. Defendant articulates numerous defenses, but never alleges that its conduct was privileged. Defendant files a summary judgment motion, but not (obviously) on the ground that their conduct was subject to any privilege.
The Court of Appeal notes on appeal, on its own initiative, that the whole lawsuit might be barred by the litigation privilege. So requests supplemental briefing.
And, boom, in the end, resolves the appeal entirely on the ground that the litigation privilege applies. A defense the defendant never raised below, never argued in its original appeal, and mentioned only at the direction of the Court of Appeal.
I'm not saying the opinion is wrong. The lawsuit does indeed seemed barred by the litigation privilege. And that's an issue of law, so the Court of Appeal probably does have discretion to raise the matter notwithstanding its wholesale omission by the parties.
But wow. You gotta be hating the Court of Appeal if you're the losing attorney in this one.
Whereas thanking your lucky stars for the Court of Appeal's (unsolicited) help if you're on the other side.
