Albertson v. Raboff

• Decision Date: 10 April 1956
• Court: California Supreme Court
• Parties: Christine J. ALBERTSON, also known as Mrs. Lee Albertson, Plaintiff and Appeallant, v. Joseph RABOFF, Defendant and Respondent. L. A. 23159.

Page 405

295 P.2d 405

46 Cal.2d 375

Christine J. ALBERTSON, also known as Mrs. Lee Albertson, Plaintiff and Appeallant, v. Joseph RABOFF, Defendant and Respondent.

L. A. 23159.

Supreme Court of California, In Bank.

April 10, 1956.

As Modified May 1, 1956.

Charles Murstein and Albert E. Wheatcroft, Los Angeles, for appellant.

Paul R. Hutchinson and 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 on 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, and that part of 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 on 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, 259 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.

Defendant contends that the recordation of a notice of lis pendens is absolutely privileged and that therefore no cause of action for disparagement of title is stated. 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 torts in the absence of statute. See Rest., Torts, §§ 585 et seq., 635 et seq.; Prosser, Torts, 2d Ed., 767. Questions of privilege relating to both torts are now resolved in the light of section 47 of the Civil Code. Thus, subdivision 2 of section 47 states the long-established rule that publications made in the course of a judicial proceeding are absolutely privileged, Gosewisch v. Doran, 161 Cal. 511, 513-515, 119 P. 656; Donnell v. Linforth, 11 Cal.App.2d 25, 28-29, 52 P.2d 937; Moore v. United States Fid. & Guaranty Co., 122 Cal.App. 205, 210, 9 P.2d 562; Rest., Torts, §§ 635-639, and the question presented therefore is whether a notice of lis pendens recorded as authorized by section 409 of the Code of Civil Procedure ¹ is a publication in the course of a judicial proceeding.

Any one with actual notice of the pendency of the proceeding who acquires an interest in the property takes subject to any judgment that may be rendered therein. Code Civ.Proc. § 1908(2). The sole purpose of recording a notice of lis pendens is to secure the same result by giving constructive notice of the pendency of the proceeding. Its effectiveness depends entirely on the action of which it is a part and to which it calls attention. It 'is purely incidental to the action wherein it is filed. It refers specifically to such action, and has no existence apart from it.' Garcia v. Pinhero, 22 Cal.App.2d 194, 197, 70 P.2d 675, 676. Since 'the effect of a lis pendens is to give constructive notice of all 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 Building & Loan Association, 18 Cal.App.2d 260, 266, 63 P.2d 840, 842, the recordation of a notice of lis pendens is in effect a republication of the pleadings. The disparagement of title arises, therefore, from the recordation of the notice of lis pendens as well as from the pleadings. The publication of the pleadings is unquestionably clothed with absolute privilege, and we have concluded that the republication thereof by recording a notice of lis pendens is similarly privileged.

The recording of such a notice is expressly authorized by section 409 of the Code of Civil Procedure, which not only identifies the persons who may record the notice and specifies the place of recordation and the time it may be made, but specifies that it may be done 'in an action.' The Legislature apparently regarded the recordation authorized in section 409 of the Code of Civil Procedure as being made 'in (a) judicial proceeding' within the meaning of section 47 of the Civil Code, for any publication 'in an action' is unquestionably 'in (a) judicial proceeding.' We do not rest our opinion, however, on the narrow ground that the word 'in' is used in both sections or that the use of that word is of decisive significance, but on the obvious purpose of section 47 to afford litigants the utmost freedom of access to the courts to secure and defend their rights without fear of being harassed by actions for defamation. See Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. 463, 469. It would be anomalous to hold that a litigant is privileged to make a publication necessary to bring an action but that he can be sued for defamation if he lets any one know that he has brought it, see Thompson v. White, 70 Cal. 135, 136, 11 P. 564, particularly when he is expressly authorized by statute to let all the world know that he has brought it. Furthermore, subdivision 4 of section 47 of the Civil Code extends the privilege to reports of judicial proceedings in public journals. It cannot reasonably be held that the Legislature meant to accord such journals a greater immunity for giving actual notice of a proceeding to their numerous readers than that accorded litigants for giving the constructive notice thereof that the Legislature has authorized them to give.

Relying on West Investment Co. v. Moorhead, 120 Cal.App.2d 837, 840-841, 262 P.2d 322, 324, 39 A.L.R.2d 833, plaintiff contends that the recordation of a notice of lis pendens 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' and is not 'in' a judicial proceeding for '(N)o function of the court or its officers is invoked; no machinery associated with the judicial process is set in motion.' By stressing the word 'in' this contention would limit the privilege to the pleadings and the subsequent communications of the judge, counsel, jurors, parties, and witnesses in the actual course of the proceeding. Since we do not believe that the privilege is so limited, West Investment Co. v. Moorhead, supra, is disapproved.

It is our opinion that the privilege applies to any publication, such as the recordation of a notice of lis pendens, that is required, e. g., Code Civ.Proc. § 749, or permitted, e. g., Code Civ.Proc. § 409, 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. See 53 C.J.S., Libel and Slander, § 104, p. 168. Thus, it is not limited to the pleadings, the oral or written evidence, to publications in open court or in briefs or affidavits. If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches. See Rest., Torts, § 587; Youmans v. Smith, 153 N.Y. 214, 220, 47 N.E. 265; Kraushaur v. Lavin, Sup., 39 N.Y.S.2d 880, 882-883; Zirn v. Cullom, 187 Misc. 241, 63 N.Y.S.2d 439, 440-441; Inselberg v. Trosty, 190 Misc. 507, 77 N.Y.S.2d 457, 458; cf. 39 A.L.R.2d 840-861. It therefore attaches to the recordation of a notice of lis pendens, for such a publication is permitted by law, and like other documents that may be filed in an action, it has a reasonable relation thereto and it is immaterial that it is recorded with the County Recorder instead of being filed with the County Clerk.

Gudger v. Manton, 21 Cal.2d 537, 134 P.2d 217, on which the court in West Investment Co. v. Moorhead, supra, 120 Cal.App.2d 837, 262 P.2d 322, relied, involved an action for slander of title for the wrongful recordation and levy of a writ of execution against the property of a person who was not a party to the action. The original judgment was obtained against the wife for a premarital tort. The writ of execution, however, was recorded and levied against her husband's separate property and had no reasonable relation to the action against the wife. The statement in the opinion in that case that 'The levy of a writ of execution is not an act in the course of a judicial proceeding', 21 Cal.2d at page 545 134 P.2d at page 222,...