Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Douglas P. Miller, Judge. Super.Ct.No. INC 52675
The Law Offices of Shawn A. McMillan and Shawn A. McMillan for Plaintiff and Appellant.
Law Office of Mitchell B. Hannah, Mitchell B. Hannah and Hallie D. Hannah for Defendants and Respondents.
OPINION
Gaut, J.
1. Introduction
This case concerns a dispute arising from an agreement to build 33 swimming pools for a residential development.
Plaintiff Santa Rosa Trails appeals from a judgment dismissing its case after the trial court sustained defendants’ demurrer with prejudice as to two causes of action and plaintiff subsequently dismissed the remaining two causes of action with prejudice.
Plaintiff raises two issues on appeal: whether the litigation privilege (Civ. Code, § 47, subd. (b)) applies to its claims and whether the complaint could be amended to allege a claim for malicious prosecution. In addition to opposing these arguments, defendants assert the appeal was untimely. Based on our independent review, we affirm the judgment. (Walker v. Allstate Indemnity Co. (2000) 77 Cal.App.4th 750, 754.)
2. Factual and Procedural Background
The facts alleged in the complaint are that plaintiff, through its general contractor, Greyhawk, Inc., hired Casa Verde Landscape Construction to build 33 swimming pools. Because Casa Verde did not have a contractor’s license for swimming pool construction, it operated under the contractor’s license of defendant Diamond Creek, Inc. Casa Verde completed work on 13 pools.
Diamond Creek sent plaintiff and Greyhawk a preliminary lien notice. Diamond Creek subsequently filed mechanic’s liens in the total amount of $193,416 against the 13 properties. Plaintiff alleged the actual amount owing was $64,652. Plaintiff further alleged Diamond Creek overstated the amount owing in order to disrupt plaintiff’s contract with Casa Verde and to exert pressure on Casa Verde. Diamond Creek also cancelled the building permits for the pools.
In another action, Casa Verde sought a preliminary injunction against Diamond Creek, which the court granted, requiring Diamond Creek to release the liens and not file any additional liens.
Al Campos dba Casa Verde Landscape Construction v. Durham, INC050376.
Plaintiff contends Diamond Creek’s conduct in filing the mechanic’s liens caused delay in finishing plaintiff’s project and interfered with plaintiff’s contracts with prospective buyers of the pool properties.
The complaint asserts causes of action for slander of title, tortious interference with contract, abuse of process, and unfair competition.
The complaint was filed in August 2005. The court ruled on defendants’ demurrer in January 2006, sustaining the demurrer without leave to amend on the first and third causes of action and with leave to amend on the second and fourth causes of action. On February 6, the court filed a notice of ruling regarding dismissal of the first and third causes of action.
Plaintiff filed a premature notice of appeal on February 24. Plaintiff filed a notice of dismissal without prejudice of the second and fourth causes of action on March 6. The first appeal (E039987) was dismissed by the Court of Appeal on March 26.
The court filed a judgment of dismissal as to the first and third causes of action on June 14. Plaintiff filed a second notice of appeal on June 23. Notice of entry of judgment of dismissal was filed on July 5.
On August 8, the Court of Appeal dismissed the second appeal (E040780) without prejudice because there was not yet a final judgment.
On September 21, plaintiff filed a request for dismissal with prejudice of the second and fourth causes of action to expedite the appeal. The court entered the dismissal as requested.
Plaintiff filed the third and present notice of appeal on October 6, 2006.
3. Timeliness of Appeal
As pertinent to the present case, California Rules of Court, rule 8.104 provides: “(a) . . . a notice of appeal must be filed on or before . . .: [¶] . . . [¶] (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled ‘Notice of Entry’ of judgment or a file-stamped copy of the judgment, accompanied by proof of service; . . . [¶] (b) . . . [¶] Except as provided in rule 8.66, no court may extend the time to file a notice of appeal. If a notice of appeal is filed late, the reviewing court must dismiss the appeal.”
On June 29, plaintiff served defendants with a notice of entry of judgment of dismissal of the first and third causes of action and a file-stamped copy of the judgment of dismissal entered on June 14, 2006. Plaintiff then filed its second notice of appeal on June 23. But the Court of Appeal dismissed the second appeal on August 8 because the judgment was not yet final in view of the remaining two causes of action which were dismissed without prejudice. (Sullivan v. Delta Air Lines, Inc. (1997) 15 Cal.4th 288, 309; Ashland Chemical Co. v. Provence (1982) 129 Cal.App.3d 790, 792-793.)
Defendants’ reliance on cases concerning belated appeals of final judgments is not on point. (Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583; Guillemin v. Stein (2002) 104 Cal.App.4th 156, 161.) Judgment in this case was not final on June 14. No final appealable judgment existed until September 21, 2006, when the second and fourth causes of action were dismissed with prejudice. The notice of appeal filed on October 6 was timely.
4. Demurrer
In various ways, plaintiff argues defendants did not file the 13 mechanic’s liens in good faith. Therefore, plaintiff contends the court should not have sustained defendants’ demurrer without leave to amend on plaintiff’s claims for slander of title and abuse of process.
In Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 830-831, the California Supreme Court reiterates the principles of the litigation privilege: “The litigation privilege, as codified in Civil Code section 47, subdivision (b), shields, among other things, any ‘publication or broadcast’ made ‘[i]n any . . . judicial proceeding.’ The privilege is ‘absolute in nature’ (Silberg v. Anderson (1990) 50 Cal.3d 205, 215), and its ‘principal purpose . . . is to afford litigants and witnesses . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions’ (id. at p. 213). ‘Although the litigation privilege was originally limited to shielding litigants, attorneys and witnesses from liability for defamation [citations], it has been interpreted to apply to virtually all torts except malicious prosecution.’ (Kimmel v. Goland (1990) 51 Cal.3d 202, 209.)
“‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.’ (Silberg v. Anderson, supra, 50 Cal.3d at p. 212.) As a general rule, the privilege ‘“applies only to communicative acts and does not privilege tortious courses of conduct.”’ [Citations.] We have, however, extended the privilege to ‘any publication . . . that is required [citation] or permitted [citation] by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is invoked.’ (Albertson v. Raboff (1956) 46 Cal.2d 375, 380-381.)”
Plaintiff’s cause of action for slander of title could not withstand challenge because the filing of a mechanic’s lien is absolutely privileged: “[T]he filing of a claim of mechanic’s lien in conjunction with a judicial proceeding to enforce it is privileged within the meaning of Civil Code section 47, subdivision 2. The recording of the claim of lien is clearly authorized by law [citation] and it is related to an action to foreclose. [Citation.] [¶] . . . The filing of a mechanic’s lien was permitted by law and it had a reasonable relation to an action to foreclose the lien. Any deficiencies in the lien procedure were a matter of defense to the action and did not militate against the privilege. [T]he filing of a lis pendens was held to be privileged notwithstanding it was later held in the action that the person filing the lis pendens was not entitled to any relief.” (Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 25.)
The case upon which plaintiff relies, Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 34-36, and its four-step analysis of the litigation privilege, does not apply because Edwards involved prelitigation statements, not the filing of mechanic’s liens. Our research discloses no case that has applied an Edwards-style analysis to slander of title based on the filing of a mechanic’s lien and we decline to be the first court to do so.
For similar reasons, plaintiff cannot state a viable claim for abuse of process. The filing of a mechanic’s lien is authorized by law: “For the tort of abuse of process, the plaintiff must allege a wilful act in the use of the process not proper in the regular conduct of the proceeding. [Citations.] The process must be misused, i.e., it must be used for a purpose other than that for which the process is designed.” (Friedman v. Stadum (1985) 171 Cal.App.3d 775, 779.) Even an ulterior motive by defendants would not support a claim for abuse of process under the instant circumstances. (Pimentel v. Houk (1951) 101 Cal.App.2d 884, 886.)
Finally, the record does not show plaintiff asked leave to amend its complaint to add a cause of action for malicious prosecution. Notwithstanding that omission, plaintiff cannot assert a claim for malicious prosecution based on the outcome of the previous case brought by Casa Verde against defendants, to which plaintiff was not a party. Plaintiff cannot “prove the prior action was . . . brought by the defendant[s] and resulted in a favorable termination for [Santa Rosa Trials] . . . .” (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1422, citing Zamos v. Stroud (2004) 32 Cal.4th 958, 970.)
5. Disposition
We affirm the judgment. Defendants as prevailing parties are entitled to recover their costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
We concur: Richli, Acting P. J., King, J.