I respectfully dissent.
Were it not for our decision in Susan S. v. Israels (1997) 55 Cal.App.4th 1290 [67 Cal.Rptr.2d 42] (Susan S.) I would agree with the trial court’s finding that the conduct of respondent Jeffrey Manning Carlton and his criminal defense lawyers in obtaining Katherine Mansell’s confidential mental health records is absolutely privileged under Civil Code section 47, subdivision (b),1 and would therefore concur with the majority’s conclusion that the judgment of dismissal is properly affirmed. In light of the holding and rationale of Susan S., however, I would grant Ms. Mansell an opportunity to amend her complaint to allege respondents deliberately misled the criminal trial court to obtain the initial discovery order and to attempt to prove her claim for invasion of her constitutional right to privacy.
*2801. Case Law Other Than Susan S. Recognizes That Ancillary Noncommunicative Conduct Does Not Defeat the Litigation Privilege
As originally filed Ms. Mansell’s complaint focused on the respondents’ alleged lack of good cause for discovery of her psychiatric records dating back to 1976, the omission from the ex parte application of any specific reference to psychiatric records and the failure of the subpoena to propose an in camera court review of the documents prior to their disclosure, the procedure recognized in People v. Reber (1986) 177 Cal.App.3d 523, 531-532 [223 Cal.Rptr. 139] (Reber) as the appropriate method for a criminal defendant to obtain privileged records by demonstrating his or her need for the information outweighed the crime victim/patient’s interest in confidentiality.2 Even if some aspect of this allegedly tortious course of conduct involved a noncommunicative act (reading the records before disclosing them to others, including potential expert witnesses for use in cross-examining Ms. Mansell at Carlton’s criminal trial), but for Susan S. I would conclude respondents’ discovery efforts were communicative in their essential nature and therefore within the privilege of section 47, subdivision (b). (See Rubin v. Green (1993) 4 Cal.4th 1187, 1195-1196 [17 Cal.Rptr.2d 828, 847 P.2d 1044] [fact that defendants’ communications “necessarily involved related acts” does not destroy privilege]; O’Keefe v. Kompa (2000) 84 Cal.App.4th 130, 134 [100 Cal.Rptr.2d 602] [“[T]he scope of ‘publication or broadcast’ includes noncommunicative conduct like the filing of a motion for a writ of sale [citation], the filing of assessment liens [citation], or the filing of a mechanic’s lien [citation]. The privilege also applies to conduct or publications occurring outside the courtroom . . . .”].)
In Brown v. Kennard (2001) 94 Cal.App.4th 40 [113 Cal.Rptr.2d 891], for example, the plaintiff complained the defendant’s allegedly wrongful levy pursuant to a writ of execution constituted an abuse of process. Seeking to avoid the bar of the litigation privilege, the plaintiff asserted the defendant’s noncommunicative act in wrongfully levying on his bank account (as opposed to the communicative acts of obtaining a judgment and applying for the writ of execution) deprived him of his property interest in that account, causing injury outside of the judicial proceeding. (Id. at p. 49.) The Court of Appeal rejected this purported distinction: “The act of applying for a writ is privileged. The privilege extends to torts arising from the privileged statement or publication. As such, not only does the privilege protect the application for the writ of execution, it also extends to the act of carrying out the directive of the writ. To hold otherwise would effectively strip the litigation privilege of its purpose.” (Id. at p. 50, fhs. omitted.)
*281Similarly in the case at bar, respondents’ act of applying for the order requiring production of Ms. Mansell’s psychiatric records is privileged under section 47, subdivision (b). (O’Keefe v. Kompa, supra, 84 Cal.App.4th at p. 135 [even an act committed fraudulently is covered by litigation privilege].) The privilege, therefore, should also extend to respondents’ acts in carrying out the directive of the discovery order they obtained. (See Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 1296, 1301-1302 [100 Cal.Rptr.2d 437] [husband’s conduct in obtaining confidential information concerning wife’s prescription drug purchases without a court order or formal discovery proceedings is protected by litigation privilege].)
In Susan S., supra, 55 Cal.App.4th 1290, however, this court held a defense attorney’s unauthorized reading of a crime victim’s confidential mental health records violated the victim’s constitutional right of privacy and that such conduct was not immune from liability under the litigation privilege even though the records were obtained in a judicial proceeding through service of a subpoena duces tecum. (Id. at pp. 1294, 1299; see People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1318 [96 Cal.Rptr.2d 264] [criminal defendant has right to discovery by subpoena duces tecum of third party records upon showing of good cause].) Susan S., we held, had a reasonable expectation of privacy in her mental health records “subject to a court determination whether any of those records should be disclosed to [respondents] prior to their disclosure.” (Susan S., at p. 1298.) Applying the Supreme Court’s decision in Kimmel v. Goland (1990) 51 Cal.3d 202, 211-212 [271 Cal.Rptr. 191, 793 P.2d 524], which held the litigation privilege did not apply to the taping of a confidential telephone conversation—an invasion of privacy caused by noncommunicative conduct occurring outside a judicial proceeding—we held section 47, subdivision (b), did not shield the defendants from liability because “Susan S.’s cause of action for invasion of her constitutional right of privacy does not depend on the ‘publication’ or ‘broadcast’ of her mental health records but rests on Israels’ conduct in reading those records.” (Susan S., at p. 1299.)3
As the majority holds, the “noncommunicative conduct” at issue in the case at bar (reading Ms. Mansell’s confidential psychiatric records) is *282identical to the conduct we found actionable in Susan S. and, unless we retreat from our earlier decision, must also be outside the scope of the litigation privilege found in section 47, subdivision (b), at least for the purpose of a cause of action for invasion of privacy cause of action. Unlike Susan S., however, where there was no judicial review of any sort prior to defense counsel’s discovery of the victim’s confidential records, here the crime victim’s psychiatric records were obtained with a modicum of judicial participation: Although the court in fact ordered production of only the victim’s medical records, the subpoena duces tecum enforced by that order identified both medical and psychiatric records.
Notwithstanding this distinction between Susan S. and the present case— crucial to the majority’s analysis—I would grant Ms. Mansell leave to amend her complaint to include additional allegations that defense counsel intentionally misled the criminal court to obtain the order arguably allowing discovery of her psychiatric records.4 With those amended allegations I believe Ms. Mansell can plead each of the three elements required to state a cause of action for invasion of her constitutional right to privacy.
2. Ms. Mansell Has Demonstrated a Reasonable Possibility She Can Amend Her Complaint to Allege Respondents Deliberately Misled the Criminal Trial Court to Obtain the Initial Discovery Order
In her briefs on appeal and during oral argument, Ms. Mansell has alleged defense counsel in the criminal proceeding affirmatively misled the trial court in order to obtain the discovery order now invoked as immunizing counsel’s conduct. In support of her proposed allegations, Ms. Mansell can point to the following matters: *283sought “the medical records of the alleged victim in this case” (italics added), and suggested those records were needed because the nature and extent of “her [Ms. Mansell’s] alleged injuries” were material to the defense of the ongoing criminal case against his client, which included a charge of battery with serious bodily injury (Pen. Code, § 243, subd. (d)).
*282— The ex parte application for an order directing the custodian of records at the Veterans Administration Hospital in Long Beach to produce records in response to defense counsels’ subpoena duces tecum referred only to Ms. Mansell’s “medical records.” (Italics added.)
— The declaration of Douglas W. Otto in support of the ex parte application explained that a prior, unsuccessful subpoena had similarly
*283— The application for subpoena duces tecum (which may or may not have been attached to the material submitted to the court) asserts the records requested “are material to the issues involved in this case as they will provide information about the alleged victim’s medical history and treatment for alleged injuries.” (Italics added.)
— Most significantly, the court order itself, prepared by defense counsel and upon which they rely to create an absolute privilege against liability for invading Ms. Mansell’s privacy, directs the custodian of records to “produce the medical records of Katherine Mansell (DOB 2/12/58) aka Katherine Midtbo as described in the attached subpoena duces tecum served herewith.” (Italics added.)
To be sure, the application for subpoena duces tecum (but not the subpoena itself) includes in its description of documents to be produced “[a]ny and all medical and psychiatric records.” But it remains disputed whether that application was actually attached to the material submitted to Judge Richard Lyman when he signed the order directing production of medical records. Indeed, the minute order for the December 9, 1999 hearing at which Judge William Gamer granted the motion to quash the subpoena expressly states the court was making no finding whether the subpoena was attached to Judge Lyman’s signed order.5
Even if the subpoena and application had been part of the package presented to Judge Lyman, however, it is by no means clear to me, at least under the rationale of Susan S., that Ms. Mansell is precluded as a matter of law from proving defense counsel attempted to mislead the court by requesting an order requiring production of medical records, not medical and psychiatric records, and presenting the court with a form of order doing just *284that.6 Certainly Evidence Code section 664, which directs us to “presume[ ] that official duty has been regularly performed”—a rebuttable presumption affecting only the burden of proof (Evid. Code, § 660)—does not justify a conclusive determination that respondents properly obtained court authorization to read and disseminate Ms. Mansell’s psychiatric records.
3. Under Susan S. a Crime Victim Has a Cause of Action for Invasion of Her Constitutional Right to Privacy against a Defense Attorney Who Deliberately Misleads the Court to Obtain Confidential Psychiatric Records
“[A] plaintiff alleging an invasion of privacy in violation of the state constitutional right to privacy must establish each of the following: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct by defendant constituting a serious invasion of privacy.” (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40 [26 Cal.Rptr.2d 834, 865 P.2d 633].)
Our decision in Susan S. recognized an individual’s legally protected privacy interest in his or her mental health records (Susan S., supra, 55 Cal.App.4th at p. 1295; accord, Jeffrey H. v. Imai, Tadlock & Keeney (2000) 85 Cal.App.4th 345, 353 [101 Cal.Rptr.2d 916] [zones of privacy created by Cal. Const, art. I, § 1, extend to the details of an individual’s medical history]), as well as a crime victim’s reasonable expectation of privacy in those confidential records. (Susan S., at p. 1295 [“Susan S. did not lose her right to privacy in her mental health records because she charged Keables with sexual battery”].) We emphasized there is nothing “ ‘inevitable’ ” about the disclosure of such records in a criminal case since “discovery requires a careful balancing of the defendant’s Sixth Amendment right to cross-examination and the complaining witness’s right of privacy. [Citation.]” (Id. at p. 1297.)
The viability of Susan S.’s claim for invasion of her right to privacy in the circumstances of that case rested in large part on the defendants’ failure to comply with the four-step procedure for pretrial disclosure of confidential psychiatric records established in Reber, supra, 171 Cal.App.3d at pages 531-532. (Susan S., supra, 55 Cal.App.4th at p. 1296.) Shortly after our decision in Susan S., the Supreme Court in People v. Hammon, supra, 15 Cal.4th 1117, 1123 (Hammon) expressly disapproved Reber and held a criminal defendant has no right to pretrial disclosure of a crime victim’s *285privileged psychiatric records: “When a defendant proposes to impeach a critical prosecution witness with questions that call for privileged information, the trial court may be called upon ... to balance the defendant’s need for cross-examination and the state policies the privilege is intended to serve. [Citation.] Before trial, the court typically will not have sufficient information to conduct this inquiry; hence, if pretrial disclosure is permitted, a serious risk arises that privileged material will be disclosed unnecessarily.” (Hammon, at p. 1127.)7
Under Hammon (as Judge Gamer recognized when he quashed the subpoena on December 9, 1999) criminal defendant Jeffrey Carlton and his defense counsel simply had no right to pretrial disclosure of Ms. Mansell’s psychiatric records, even upon a heightened showing of good cause; and Ms. Mansell necessarily had a reasonable expectation that the confidentiality of her records would be respected, at least prior to the commencement of Carlton’s trial. If respondents were unaware of this controlling authority and reasonably believed they were entitled to discover the records, Ms. Mansell’s cause of action for invasion of privacy will undoubtedly fail. However, to the extent Ms. Mansell can allege and ultimately prove defense counsel deliberately avoided the restrictions on pretrial criminal discovery announced in Hammon by affirmatively misleading Judge Lyman as to the nature of the records sought by their subpoena duces tecum, she will have established, at least in my view, conduct by the defendants constituting a serious invasion of privacy. A properly obtained court order enforcing a subpoena duces tecum for psychiatric records would (notwithstanding Hammon) negate an essential element of the invasion of privacy cause of action —“an egregious breach of the social norms underlying the privacy right.” (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 37.) An order obtained by successful efforts to mislead the court should not. (Ibid. [“Actionable invasions of privacy must be sufficiently serious in their nature, scope, and actual or potential impact to constitute an egregious breach of the social norms underlying the privacy right. Thus, the extent and gravity of the invasion is an indispensable consideration in assessing an alleged invasion of privacy.”].)
The majority’s answer to this analysis is, in effect, to assert Ms. Mansell’s allegations regarding misrepresentations by defense counsel to the court as to the nature of the records sought by their subpoena duces tecum are irrelevant because those statements would be absolutely protected by the *286litigation privilege. (Maj. opn., ante, at pp. 278-279, in. 47.) I agree the litigation privilege immunizes defense counsel from tort liability for any misrepresentations to the court, whether or not intentional or in bad faith. (Brown v. Kennard, supra, 94 Cal.App.4th at p. 45 [“Because the privilege applies without regard to malice or evil motives, it has been characterized as ‘absolute.’”]; see Silberg v. Anderson (1990) 50 Cal.3d 205, 214 [266 Cal.Rptr. 638, 786 P.2d 365].)8 But that immunity does not preclude Ms. Mansell from introducing evidence of respondents’ allegedly misleading statements to prove that they, like defense counsel in Susan S., intended to obtain her confidential psychiatric records by improperly evading meaningful judicial oversight of their discovery efforts. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1168 [232 Cal.Rptr. 567, 728 P.2d 1202] [“ ‘The privileges of Civil Code section 47, unlike evidentiary privileges which function by the exclusion of evidence [citation], operate as limitations upon liability.’ Indeed, on brief reflection, it is quite clear that section 47 [, subdivision] (2) has never been thought to bar the evidentiary use of every ‘statement or publication’ made in the course of a judicial proceeding .... Thus, while section 47 [, subdivision] (2) bars certain tort causes of action which are predicated on a judicial statement or publication itself, the section does not create an evidentiary privilege for such statements. Accordingly, when allegations of misconduct properly put an individual’s intent at issue in a civil action, statements made during the course of a judicial proceeding may be used for evidentiary purposes in determining whether the individual acted with the requisite intent. [Citations.]” (Italics omitted.)]; accord, Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 914-915 [93 Cal.Rptr.2d 364] [statements made during a judicial proceeding may be used to prove bad faith in an action against an insurer].)
The United States Supreme Court has recognized a criminal suspect’s right to pursue a damage claim against an overzealous police officer who has submitted a false or objectively unreasonable application for a search warrant, notwithstanding the fact that a judicial officer issued the warrant after finding probable cause. (Malley v. Briggs (1986) 475 U.S. 335, 345 [106 S.Ct. 1092, 1098, 89 L.Ed.2d 271].) “[I]n an ideal system an unreasonable request for a warrant would be harmless, because no judge would approve it. But ours is not an ideal system, and it is possible that a magistrate, working under docket pressures, will fail to perform as a magistrate should. We find it reasonable to require the officer applying for the warrant to minimize this *287danger by exercising reasonable professional judgment.” (Id. at pp. 345-346 [106 S.Ct. at p. 1098]; see Lombardi v. City of El Cajon (9th Cir. 1997) 117 F.3d 1117, 1118 [“specific intent to deceive the issuing court is not an element (in addition to a substantial showing of deliberate or reckless falsehood or omission that is material to the probable cause determination) that the plaintiff must show in order to survive summary judgment on a claim of qualified immunity in a civil rights action seeking damages”].) A crime victim who has suffered an invasion of her constitutional right to privacy at the hands of overzealous defense counsel deserves no less protection. Consistent with the holding and rationale of Susan S., I would give Ms. Mansell the opportunity she seeks to amend her complaint and to attempt to prove her claim.
A petition for a rehearing was denied May 29, 2003, and the opinion was modified to read as printed above.
Statutory references are to the Civil Code unless otherwise indicated.
Reber was expressly disapproved by the Supreme Court in People v. Hammon (1997) 15 Cal.4th 1117, 1123 [65 Cal.Rptr.2d 1, 938 P.2d 986].
Although the injury in Brown v. Kennard, supra, 94 Cal.App.4th 40, purportedly occurred like the injury in Kimmel as a result of noncommunicative conduct outside a judicial proceeding—the defendant’s wrongful levy on the plaintiff’s bank account—the court persuasively distinguished Kimmel because the defendant had “employed a judicial process (writ of execution) to enforce a purported judgment pursuant to the purpose for which the process was designed, and did so within the confines of a judicial procedure.” (Id. at p. 49.) That same distinction would seem to apply to the facts in Susan S., where, as we recognized in rejecting an abuse of process claim, the defense counsel employed a subpoena duces tecum for the purpose for which it was designed within the confines of a judicial proceeding. (Susan S., supra, 55 Cal.App.4th at pp. 1302-1303.)
“ ‘Where the complaint is defective, “[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. [Citations.]” ’ [Citations.]” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970-971 [9 Cal.Rptr.2d 92, 831 P.2d 317]; see Code Civ. Proc., § 472c, subd. (a) [“When any court makes an order sustaining a demurrer without leave to amend the question as to whether or not such court abused its discretion in making such an order is open on appeal even though no request to amend such pleading was made”].)
We, of course, do not resolve such factual conflicts when reviewing the propriety of a trial court order sustaining a demurrer without leave to amend. (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at pp. 970-971.) In reviewing Ms. Mansell’s proposed amendments to her complaint for invasion of privacy, we deem to be true all material facts alleged (see Serrano v. Priest (1971) 5 Cal.3d 584, 591 [96 Cal.Rptr. 601, 487 P.2d 1241, 41 A.L.R.3d 1187]) and also accept as true facts that may be implied or inferred from those expressly alleged. (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1501 [82 Cal.Rptr.2d 368].)
I emphasize I am evaluating the legal import of Ms. Mansell’s allegations of misconduct and do not intend to suggest the record now before us would support a finding that those allegations are true.
The Hammon court limited its analysis to the defendant’s lack of any right to pretrial discovery and did not address the issue of balancing the defendant’s need at trial for information regarding the victim’s psychiatric history against the crime victim’s right to privacy. (Hammon, supra, 15 Cal.4th at p. 1128.)
As discussed above, if I were writing on a clean slate, I would also conclude the litigation privilege immunizes respondents’ acts in carrying out the directive of the discovery order they obtained, including ancillary noncommunicative acts such as reading the confidential records before disseminating (“publishing”) them to others, including potential expert witnesses.