Opinion
12-13-1954
Christine J. ALBERTSON, also known as Mrs. Lee Albertson, Plaintiff and Appellant, v. Joseph RABOFF, Defendant and Respondent. * Civ. 20304.
Albert E. Wheatcroft and Charles Murstein, Los Angeles, for appellant. Paul R. Hutchinson and C. L. Gardner, Los Angeles, for respondent.
Christine J. ALBERTSON, also known as Mrs. Lee Albertson, Plaintiff and Appellant,
v.
Joseph RABOFF, Defendant and Respondent. *
Dec. 13, 1954.
Hearing Granted Feb. 10, 1955.
Albert E. Wheatcroft and Charles Murstein, Los Angeles, for appellant.
Paul R. Hutchinson and C. L. Gardner, Los Angeles, for respondent.
SHINN, Presiding Justice.
This is an action for slander of title in which the court sustained an objection to the introduction of evidence and rendered judgment of dismissal from which plaintiff appeals.
The principal question is whether the recording of a notice of lis pendens furnishes a proper foundation for an action for slander of title.
Sections 46 and 47 of the Civil Code are found in division 1, part II, of the Code which treats of personal rights, including libel and slander. Section 46 reads in part: 'Slander is a false and unprivileged publication, orally uttered, and also communications by radio or any mechanical or other means which * * * by natural consequence, causes actual damage.' Section 47 reads in part: 'A privileged publication or broadcast is one made * * * in any (1) legislative or (2) judicial proceeding, or (3) in any other official proceeding authorized by law.'
The ruling excluding evidence was made upon the ground that the recording of a notice of lis pendens is a privileged publication. Subsequent to the entry of judgment the question was decided in West Investment Co. v. Moorhead, 120 Cal.App.2d 837, 262 P.2d 322, 324, to the contrary of the holding of the trial court in the present action. Speaking of the scope of section 47, the court said: 'But such absolute privilege does not transcend the limits of what may properly be characterized as judicial proceeding; it will not attach to extrajudicial publications, related to the litigation, which are made outside the purview of the judicial proceeding. Thus, the recordation of a notice of lie pendens is not an act in the course of a judicial proceeding within the meaning of the privilege conferred by Civil Code, section 47, subd. 2. No function of the court or its officers is invoked; no machinery associated with the judicial process is set in motion. It is merely a private act undertaken dehors the judicial proceeding for the purpose of calling to the attention of all the world the pendency of litigation affecting the designated real property. * * * It must be concluded, therefore, if defendants brought their suit against plaintiff maliciously and without an honest belief in the validity of their asserted claim, then it follows that liability for slander of title would attach upon the filing of the lis pendens notice.' A judgment of dismissal on sustaining of a demurrer without leave to amend was reversed. We are satisfied with the reasoning and the conclusion of the court quoted above and adopt it as our own.
A further contention of the defendant is that plaintiff's amended complaint did not allege that final judgment had been rendered in her favor in the action in which the notice of lis pendens was recorded. This criticism of the complaint is unsound. In the former action, Raboff had filed a complaint containing six causes of action. In two of them he sought the recovery of a money judgment against Mrs. Albertson. By his second, third, fourth and fifth causes of action and upon several different theories, he sought either to impress a lien upon real property owned by Mrs. Albertson or a judgment declaring her title to have been obtained from Lee Albertson, her husband, since deceased, without consideration and in fraud of the latter's creditors. Findings and judgment were in favor of Raboff upon a single cause of action namely, the assumption by Mrs. Albertson of an indebtedness of her husband in favor of Raboff. Findings were against Raboff upon all the causes of action for the impressing of a lien upon the property or which attacked the validity of Mrs. Albertson's title thereto. Judgment was in favor of Mrs. Albertson as to these several causes of action and the claims of Raboff to an interest in the property were declared to be invalid. Mrs. Albertson appealed only from that part of the judgment which made an award of money to Raboff. Raboff did not appeal. With respect to Raboff's claim of a lien upon the property and his attack upon the validity of Mrs. Albertson's title, the judgment became final. All these facts were alleged in the amended complaint in the present action.
In arguing the insufficiency of the complaint to state a cause of action, defendant relies upon the following facts: The judgment in Raboff v. Albertson in the Superior Court was entered March 10, 1952; it was affirmed on appeal January 18, 1954, 122 Cal.App.2d 555, 265 P.2d 139; the present action was instituted July 7, 1952. Defendant says there was no final judgment in the case until the judgment on appeal was rendered. In this he is mistaken. The provisions of the judgment which determined that Raboff had no interest in or lien upon the real property of Mrs. Albertson were independent of the provision which awarded Raboff a sum of money. With respect to the former provisions, the judgment became final sixty days after it was entered.
An appeal from a judgment of the superior court is taken by filing with the clerk a notice of appeal, stating in substance that the appellant appeals from a specified judgment or a particular part thereof. Rule 1(a), Rules on Appeal. It is elementary that a party may accept the provisions of a judgment that are favorable to him and appeal from those that are adverse.
Where an appeal is taken from a part of a judgment and there are independent adjudications which are not appealed from, the latter become final when the time for appeal has expired. G. Ganahl Lumber Co. v. Weinsveig, 168 Cal. 664, 143 P. 1025; Whalen v. Smith, 163 Cal. 360, 125 P. 904.
Defendant does not criticize the amended complaint in any other particulars. We have studied its allegations and found them sufficient to state a valid cause of action for slander of title.
The judgment is reversed.
PARKER WOOD and VALLEE, JJ., concur. --------------- * Opinion vacated 287 P.2d 145.