Opinion
9-2-1955
Christine J. ALBERTSON, also known as Mrs. Lee Albertson, Plaintiff and Appellant, v. Joseph RABOFF, Defendant and Respondent. L. A. 23159.
Albert E. Wheatcroft, Charles Mursten, Los Angeles, for appellant. Paul R. Hutchinson, 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.
Sept. 2, 1955.
Rehearing Granted Sept. 28, 1955.
Albert E. Wheatcroft, Charles Mursten, Los Angeles, for appellant.
Paul R. Hutchinson, C. L. Gardner, Los Angeles, for respondent.
TRAYNOR, Justice.
In 1948 defendant brought an action against plaintiff in which he sought a money judgment and either a lien on real property owned by plaintiff or a judgment declaring that her title was obtained from her husband without consideration and in fraud of creditors. Defendant recorded a notice of pendency of this action in the county recorder's office of the county in which the real property is located. After a trial of the action, judgment was entered in favor of plaintiff on defendant's claims of a lien upon or an interest in plaintiff's real property. Defendant did not appeal. Plaintiff appealed only from that part of the judgment awarding money to defendant. The judgment was affirmed. Raboff v. Albertson, 122 Cal.App.2d 555, 265 P.2d 139.
In the present action, plaintiff alleges that defendant knew at the time of filing his complaint in the prior action that he had no right to a lien upon or an interest in her real property, that he nevertheless knowingly and maliciously asserted false claims thereto, and that by recording a notice of lis pendens he disparaged her title to her damage. The court sustained defendant's objection to the introduction of evidence on the ground that the complaint did not state a cause of action (see, Perry v. Futch, 119 Cal.App.2d 556, 559, 256 P.2d 971) and entered a judgment of dismissal. Plaintiff appeals.
Defendant contends that plaintiff's complaint herein was filed while her appeal from the judgment in the prior action was still pending and was therefore premature. In the prior action plaintiff appealed only from the part of the judgment that made an award of money to defendant. That part of the judgment was severable from the part that determined that defendant had no interest in or right to a lien upon plaintiff's real property. No appeal was taken from the latter part of the judgment, and it became final 60 days after the date thereof. Rules on Appeal, Rule 2(a); American Enterprise, Inc., v. Van Winkle, 39 Cal.2d 210, 216, 246 P.2d 935; G. Ganahl Lbr. Co. v. Weinsveig, 168 Cal. 664, 667, 143 P. 1025; Whalen v. Smith, 163 Cal. 360, 362-363, 125 P. 904. Plaintiff's complaint herein was filed after the time for appeal had expired and was therefore not premature.
We thus reach the basic issue on the merits, was defendant's recordation of a notice of lis pendens absolutely or only conditionally privileged? Although the gravamen of an action for disparagement of title is different from that of an action for personal defamation, Coley v. Hecker, 206 Cal. 22, 27, 272 P. 1045; Smith v. Stuthman, 79 Cal.App.2d 708, 709, 181 P.2d 123, substantially the same privileges are recognized in relation to both kinds of torts in the absence of statute. (See, Rest., Torts §§ 585 et seq., 635 et seq; Prosser, Torts, 1045.) Questions of privilege reelating to both kinds of torts are now resolved in the light of the provisions of section 47 of the Civil Code (see, Gudger v. Manton, 21 Cal.2d 537, 545, 134 P.2d 217; West Investment Co. v. Moorhead, 120 Cal.App.2d 837, 840, 262 P.2d 322, 39 A.L.R.2d 833; see also, Thompson v. White, 70 Cal. 135, 136, 11 P. 564), in which the common law rules have been codified. Thus, subdivision 2 of section 47 states the long-established rule that publications made in the course of a judicial proceeding are absolutely privileged (see, Gosewisch v. Doran, 161 Cal. 511, 513-514, 119 P. 656; Rest., Torts §§ 635-639), and the question in the present case therefore is whether a permissively recorded notice of lis pendens, Code Civ.Proc. § 409, is a publication in the course of a judicial proceeding.
That question was decided adversely to defendant in West Investment Co. v. Moorhead, 120 Cal.App.2d 837, 262 P.2d 322, 39 A.L.R.2d 833, where it was held that the recordation of a notice of lis pendens is not an absolutely privileged publication within the meaning of section 47(2) of the Civil Code, and that an action for disparagement of title can be predicated on a recordation of a notice of lis pendens, if that publication was made in bad faith or in the absence of an honest belief in the merits of the rights claimed in the pending proceeding. In that case the court stated:
'Section 47 of the Civil Code reads in part: 'A privileged publication * * * is one made * * * 2. In any * * * judicial proceeding * * *.' It is undisputed that under the statutory dispensation thus granted, pleadings filed to commence an action in a court, and all subsequent communications of the judge, counsel, jurors, parties, and witnesses in the actual course of the judicial proceeding, are clothed with absolute privilege.
'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 lis 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. In Coley v. Hecker, 206 Cal. 22, 272 P. 1045, the court stated that the wrongful recording of an abstract of judgment was not a malicious abuse of process (thus indicating, in effect, that it was an act outside of the judicial proceeding), but rather was a slander of the owner's title in the same category as a forged deed. In Gudger v. Manton, 21 Cal.2d 537, 134 P.2d 217, 222, plaintiff prevailed in a slander of title action arising out of a levy and recordation of a writ of execution against a married woman upon her husband's separate property. On appeal it was contended that the levy of the execution was absolutely privileged as being an act in the due course of a judicial proceeding. To this argument the court replied: 'The levy of a writ of execution is not an act in the course of a judicial proceeding. It is merely an endeavor to collect a judgment rendered in the judicial proceeding, and the acts of the public officials involved are merely ministerial.' Similarly, the recording of a notice of lis pendens stands on a footing not different from the recording of an abstract of judgment, as in Coley v. Hecker, supra, or the levy and recordation of a writ of execution as in Gudger v. Manton, supra; that is to say, it is an act apart from the judicial proceeding itself and not invested with the privilege of section 47 subd. 2 of the Civil Code.
'Defendants' argument that the lis pendens itself contains no untruth and cannot be actionable is not only specious, but ignores the purpose and effect of the notice lis pendens. 'The effect of a lis pendens is to give constructive notice of all of the facts apparent upon the face of the pleadings, and of those other facts of which the facts so stated necessarily put a purchaser on inquiry * * *.' Harris v. Whittier Bldg. & Loan Ass'n, 18 Cal.App.2d 260, 266, 63 P.2d 840, 842. It carries the number of the case to which it refers and has the practical effect of incorporating by reference the contents of the pleadings. In short, it constitutes a republication of the statements contained in the pleadings to all who are charged with notice thereof under circumstances not protected by the absolute privilege of a judicial proceeding. That a wrongful and malicious recording of a notice lis pendens might serve as the basis of a slander of title action, present other necessary elements of the tort and absent a valid privilege, is tacitly assumed in Smith v. Stuthman, 79 Cal.App.2d 708, 181 P.2d 123. In New Orleans Land Co. v. Slattery, 145 La. 256, 82 So. 215, plaintiff brought an action for slander of title based on the filing of a lis pendens; a judgment for defendant was sustained on appeal only because it was found that defendant acted in good faith and with probable cause. 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.' 120 Cal.App.2d 837, 840-841, 262 P.2d at pages 322, 324-325.
Defendant contends that under sections 409 and 749 of the Code of Civil Procedure a different result should have been reached in the West Investment Co. case Section 749 applies only to an action to determine adverse claims to real property. The prior action herein was not such an action, and it is therefore unnecessary to determine whether the mandatory recordation of a notice of lis pendens required by that section is absolutely privileged. See also, Code Civ.Proc. §§ 755, partition, 1243, eminent domain. Defendant invokes section 409 for the proposition that since the recordation of a notice of lis pendens is 'in an action' it is therefore made 'in (a) judicial proceeding' within the meaning of section 47(2) of the Civil Code and is absolutely privileged under that section. The words 'in an action' as used in section 409, however, serve only to identify the persons who may record a notice of lis pendens and the circumstances in which it may be recorded, and the last sentence of the section clearly indicates that the permissive recordation of a notice of lis pendens under that section is not a part of a judicial proceeding for the purposes of the absolute privilege accorded to such proceedings, but '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.' West Investment Co. v. Moorhead, supra, 120 Cal.App.2d 837, 840, 262 P.2d at page 324.
The judgment is reversed.
GIBSON, C, J., and EDMONDS and SPENCE, JJ., concur.
SHENK, Justice (dissenting).
I dissent. In the present action Mrs. Albertson seeks damages from Raboff occasioned by his alleged slander of her title to certain land situated in the city of Glendale during the course of prior litigation between the parties. In 1948 Raboff commenced an action against Mrs. Albertson and in 1950 filed his sixth amended complaint alleging six causes of action. On the sixth cause of action, alleging a new promise in forbearance of suit, the trial court rendered judgment in the sum of $6,500. This part of the judgment was affirmed. Raboff v. Albertson, 122 Cal.App.2d 555, 265 P.2d 139. The second, third, fourth and fifth causes of action sought to set aide an allegedly fraudulent conveyance to Mrs. Albertson from her deceased husband, to impress the land so conveyed with a lien and to bring the land within the husband's estate. On these causes of action the trial court rendered judgment for Mrs. Albertson. No appeal was taken from that part of the judgment and it became final before the present action was commenced.
In her complaint Mrs. Albertson alleges that Raboff's recordation of a notice of lis pendens in the former action constituted a slander of her title to the land. She alleges all of the elements necessary to state a cause of action for slander of title. On the trial of the cause an objection to the introduction of evidence in support of her claim was sustained by the trial court upon the ground that the lis pendens was privileged as a declaration made in the course of a judicial proceeding. A majority of this court now reverses the trial court's judgment of dismissal, holding that the lis pendens in not accorded an absolute pivilege in defamation actions.
The better view recognizes the privilege for declarations contained in the lis pendens in the same fashion and with the same limitations that pleadings and other declarations made in the course of judicial proceedings are protected as privileged communications. Section 47 of the Civil Code provides that 'A privileged publication or broadcast is one made * * * 2. In any * * * judicial proceeding * * *.' If a publication is made in the course of a judicial proceeding within the meaning of Section 47, subdivision 2, it is afforded an absolute privilege. See Gosewisch v. Doran, 161 Cal. 511, 119 P. 656; Donnell v. Linforth, 11 Cal.App.2d 25, 52 P.2d 937; Moore v. United States F. & G. Co., 122 Cal.App. 205, 9 P.2d 562.
The statutory language must be given the construction which best recognizes its fair import. It is clear that th notice of lis pendens is recorded pursuant to the action, and in that sense constitutes a declaration 'in' a judicial proceeding within the meaning of Section 47. See Code of Civil Procedure, Section 409; Garcia v. Pinhero, 22 Cal.App.2d 194, 197, 70 P.2d 675; Restatement of Torts, § 587; 53 C.J.S., Libel and Slander, § 104. Thus it is said in the Restatement of Torts at Section 587: 'A party to a private litigation * * * is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of a judicial proceeding in which he participates, if the matter has some relation thereto.' The privilege is not limited to the pleadings or oral testimony. It is much broader. 'This privilege arises immediately on the doing of any act required or permitted by law in due course of a judicial proceeding or as preliminary thereto, and it is not absolutely essential that the language be spoken in open court or contained in a pleading, brief, or affidavit.' 53 C.J.S., Libel and Slander, § 104, p. 168. If the communication is reasonably necessary to further any proper step in the judicial proceeding or to actieve the objects of the litigation as a whole, such communication is absolutely privileged even though it is made outside of the court room.
Nor is the absolute privilege limited to statements or documents legally required in order to commence or try the action. If the publication has a reasonable relation to the action and is permitted by law, then the absolute privilege attaches. Thus the absolute privilege applies to statements contained in an affidavit in support of a motion for a new trial (Donnell v. Linforth, supra, 11 Cal.App.2d 25, 52 P.2d 937); to depositions taken without subpoena or order of court (see Smith v. Banister, 9 Alaska 632); to letters from defendant's counsel to the plaintiff (Inselberg v. Trosty, 190 Misc. 507, 77 N.Y.S.2d 457); (Zirn v. Cullom, 187 Misc. 241, 63 N.Y.S.2d 439); to letters addressed to a court from substituted counsel containing libel on original counsel (Richeson v. Kessler, 73 Idaho 548, 255 P.2d 707); to language uttered during examination of plaintiff's books pursuant to an order to the plaintiff to produce books and records (Kraushaar v. Lavin, Sup., 39 N.Y.S.2d 880); to defamatory lists of questions which counsel proposed to use in a hearing (Youmans v. Smith, 153 N.Y. 214, 47 N.E. 265).
In the Youmans case the defendants complied a list of questions to be asked prospective witnesses upon the hearing of a petition to disbar Youmans from law practice in the State of New York. The defendants caused fifty copies of the proposed questions containing defamatory matter to be printed. Youmans then brought his action for libel. In reversing a judgment for Youmans on the ground that the printed questions were subject to an absolute privilege, the New York Court of Appeals said at 153 N.Y. 221-220, 47 N.E. 267: 'While such a course may be open to criticism, there can be no question that he (defendant) had a strict legal right to do so, provided the questions were confined to such subjects as were or might become material during the progress of the trial. * * * Whatever he had the right to do in conducting the matter for his client, according to the ordinary course of procedure, he was protected in doing by the broad shield of privilege, and could not be held liable in damages, even if what he wrote or said reflected injuriously upon the character of others.' Hence the absolute privilege is not limited to declarations which are necessary to maintain the action. The correct view extends the privilege to permissive declarations having a reasonable relation to the cause.
Raboff's right to record the notice of lis pendens is expressly recognized in Code of Civil Procedure section 409 which provides: 'In an action affecting the title or the right of possession of real property, the plaintiff, at the time of filing the complaint, and the defendant, at the time of filing his answer, * * * may record in the office of the Recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, and the object of the action or defense, and a description of the property in that county affected thereby. * * *' This code section indicates that the recordation of the notice of lis pendens is pursuant to, and part of, the action itself. Garcia v. Pinhero, supra, 22 Cal.App.2d 194, 197, 70 P.2d 675; Restatement of Torts, supra, § 587; 53 C.J.S., Libel and Slander, § 104. The contrary view, expressed in West Investment Co. v. Moorhead, 120 Cal.App.2d 837, 262 P.2d 322, 39 A.L.R.2d 833, should be disapproved.
Nor are Gudger v. Manton, 21 Cal.2d 537, 134 P.2d 217, and Coley v. Hecker, 206 Cal. 22, 272 P. 1045, cited by Raboff, controlling in the present case. The Gudger case involved an action for slander of title predicated upon the wrongful recordation and levy of a writ of execution. It involved not only a communication made after the judgment was rendered in the judicial proceeding but also a slander of the title of a person not a party to the action. The original judgment was obtained against the wife for a premarital tort. The writ of execution was recorded against and levied upon her husband's separate property. In such case the communication had no reasonable relation to the principal action against the wife. In the slander of title action brought by the husband, this court properly held that the defendant therein was entitled only to the conditional privilege allowed disparaging statements by rival claimants to property. Civil Code, § 47, subd. 3. Coley v. Hecker, supra, 206 Cal. 22, 272 P. 1045, presented the question whether an action for damages resulting from the wrongful recordation of an abstract of judgment was in the nature of an action for abuse of civil process or slander of title for the purpose of determining venue. In deciding that the action was one in slander of title it was unnecessary for the court to consider the question of privilege. Hence the Coley case, like the Gudger case, is not inconsistent with the absolute privilege which should be here applied.
The notice of lis pendens recorded by Raboff had a reasonable relation to the objects of the second, third, fourth and fifth causes of action stated in his complaint in the prior action. While it is true that the trial court rendered judgment for Mrs. Albertson on those causes of action they nevertheless presented a proper and reasonable basis for recording the notice of lis pendens. Had there existed any danger that Mrs. Albertson would convey the property in question during the course of litigation, the result might have deprived Raboff of the effective power to pursue his claim. Under such circumstances he was entitled to protect himself by recording the notice.
Furthermore, the rule now announced by the majority would certainly place members of the bar in jeopardy. It is safe to say that a client is seldom consulted by his attorney concerning the advisability of filing and recording a lis pendens. That question is decided by the attorney with the view of protecting the interest of the client under any judgment which may be obtained affecting the real property involved. When the official records or other facts justify the belief that the defendant is the owner of or has an interest in that property it may well be the duty of the lawyer to record the notice. Upon the trial it may develop, as here, that the plaintiff is entitled to a money judgment but that for reasons not appearing of record or otherwise the judgment debtor had no interest in the real property described in the complaint and in the notice. If the client is to be subjected to an action for damages for slander of title as is now held, is not the attorney jointly liable? Must he run the risk of personal liability in thus endeavoring to protect his client's interest by taking the step authorized by statute for that very purpose? In the absence of absolute privilege the ordinary principles of tort liability would threaten the attorney with the same liability that the majority here imposes on the client. See Gudger v. Manton, 21 Cal.2d 537, 134 P.2d 217; 6 Cal.Jur.2d § 148; 7 C.J.S., Attorney and Client, § 52, p. 834; Annotation, 87 A.L.R. 174. Also, with such a person liability facing him would there not then arise a conflict of interest between the rights of the client and the attorney's own personal interest contrary to the policy of the law in the relationship of attorney and client? If the attorney fails to record the notice for fear of his possible personal liability and the real property slips from the grasp of the law with prejudice to the client, would not the attorney be guilty of sacrificing his client's interests in order to protect his own? Any doctrine which tends to create the foregoing mischief should be disapproved. I would affirm the judgment.
CARTER and SCHAUER, JJ., concur. --------------- * Opinion vacated 295 P.2d 405. 1 'In an action affecting the title or the right of possession of real property, the plaintiff, at the time filing the complaint, and the defendant, at the time of filing his answer, when affirmative relief is claimed in such answer, or at any time afterwards, may record in the office of the Recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, and the object of the action or defense, and a description of the property in that county affected thereby. From the time of filing such notice for record only, shall a purchaser or incumbrancer of the property affected thereby be deemed to have constructive notice of the pendency of the action, and only of its pendency against parties designated by their real names.'