Knoell v. Petrovich
| Decision Date | 09 November 1999 |
| Docket Number | No. B127721.,B127721. |
| Citation | 90 Cal.Rptr.2d 162,76 Cal.App.4th 164 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Michael C. KNOELL, Plaintiff and Appellant, v. Susan F. PETROVICH, Defendant and Respondent. |
Jencks Law Group; Michael R. Jencks, San Luis Obispo, and Cynthia C. Rucker, for Plaintiff and Appellant.
Hatch and Parent; Stanley M. Roden, Jeffery H. Speich, Santa Barbara, and Kelly McIntyre Knight, for Attorney Petrovich.
Michael C. Knoell appeals from a judgment of dismissal entered after the trial court sustained, without leave to amend, a demurrer to the third amended complaint for damages against Attorney Susan F. Petrovich. The trial court concluded that the action was barred by the litigation privilege (Civ.Code, § 47, subd. (b)(2)) and the statute of limitations (Code Civ. Proc., §§ 340, subd. (3); 339, subd. 1). We affirm.
In 1994 Joan Johnson retained Attorney Petrovich to extinguish a deed granting appellant an easement across Johnson's property. The deed purported to expand an existing 14-foot wide access easement to a 20-foot wide easement. Johnson had been involved in several real estate ventures with appellant but did not recall executing the 20-foot easement deed. She believed that appellant may have forged her signature.
Attorney Petrovich sent a December 5, 1994 demand letter requesting that appellant extinguish the easement deed which "may or may not be a forgery." (See Exhibit A in the append., post, at p. 167.) When appellant failed to rescind the deed, Attorney Petrovich sent a January 26, 1995 letter to the Lompoc City Attorney to investigate alternative access to appellant's lots. (See Exhibit B in the append., post, at p. 169.) The letter stated: The letter indicated that Johnson's neighbors would grant appellant a new easement for egress and ingress if the city abandoned its plan to extend the public street.
Attorney Petrovich settled the easement dispute with appellant. On July 10, 1995, appellant executed a quitclaim deed extinguishing the 20-foot easement deed.
Appellant claimed that he was coerced into the settlement and filed suit against Johnson for defamation, slander of title, breach of contract, and interference with contractual relations. (Knoell v. Johnson (Super. Ct. Santa Barbara County, No. SM94109).) At trial in No. SM94109, Attorney Petrovich testified that Johnson told her (Petrovich) that while the signature on the 20-foot easement deed "looked like her signature," she (Johnson) was not sure that the signature was genuine. Attorney Petrovich also testified that Johnson said it could be a forgery because she (Johnson) "never signed an easement grant deed to Mr. Knoell." The jury, however, awarded appellant $120,000 in damages. The propriety of this judgment is not before us.
On November 14, 1997, appellant sued Attorney Petrovich for defamation, unfair business practices, interference with contractual relations, interference with prospective business advantage, and misrepresentation. Attorney Petrovich successfully demurred to the first amended complaint on the ground that it was barred by the litigation privilege (Civ.Code, § 47, subd. (b)(2)) and the statute of limitations (Code Civ. Proc., §§ 339, subd. (1); 340, subd. (3)).
Appellant filed a second amended complaint, adding a cause of action for extortion. The amended complaint alleged that Attorney Petrovich "misused the threats of civil prosecution and the color of her office as an attorney and officer of the court, for the purpose of compelling and coercing plaintiffs capitulation to defendant's demand to surrender his property interest in the easement and/or the payment of money by the wrongful and knowingly false accusations of crime...."
Attorney Petrovich demurred again. The trial court sustained the demurrer without leave to amend on the first, second, fourth, and fifth causes of action for libel per se, slander per se, interference with contractual relations, and interference with prospective business advantage. The demurrer to the third, sixth, and seventh causes of action for unfair business practices, extortion, professional negligence and misrepresentation was sustained with leave to amend.
Appellant filed a third amended complaint alleging the same basic facts. The trial court sustained Attorney Petrovich's demurrer without leave to amend on the ground that the action was barred by the litigation privilege and the statute of limitations.
The third amended complaint alleges that Attorney Petrovich published defamatory letters on December 5, 1994 and January 26, 1995, and slandered appellant at a February 16, 1995 office conference. The action was filed November 14, 1997, more than two years later. The trial court ruled that the defamation causes of action were barred by the one-year statute of limitations (Code Civ. Proc., § 340, subd. (3)), and the causes of action for interference with contractual relations and interference prospective business advantage were barred by the two-year statute of limitations. (Code Civ. Proc., § 339, subd. (1); Tu-Vu Drive-In Corp. v. Davies (1967) 66 Cal.2d 435, 437, 58 Cal.Rptr. 105, 426 P.2d 505.) It did not err. The statute of limitations commenced to run when the alleged defamatory statements were published. (Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931, 30 Cal. Rptr.2d 440, 873 P.2d 613.)
Appellant contends that the statute of limitations was tolled until 1997. The third amended complaint alleges that appellant did not discover the false publication until the Johnson trial. Appellant, however, is estopped by his verified complaint and first amended complaint which allege that appellant "did not, and could not have reasonably discovered the acts, omissions, misrepresentations, and conduct of Defendants ... until at least on or about December 21, 1995 when in the course of discovery in other litigation it was disclosed that there was no basis, reasonable, or otherwise, for Defendants to make the defamatory statements ...." Because of the judicial admission, appellant cannot plead contradictory facts to toll the statute of limitations. (E.g., Gaglione v. Coolidge (1955) 134 Cal. App.2d 518, 523, 286 P.2d 568; Rogers v. Bank of America (1956) 140 Cal.App.2d 228, 230-231, 294 P.2d 959; 5 Witkin, Cal. Procedure, Pleading (4th ed.1997) § 1123, p. 578.)
Equally without merit is the argument that the statute of limitations was tolled until Johnson waived the attorney-client privilege. In 1995 appellant knew that Attorney Petrovich authored the letters. No facts are alleged that Attorney Petrovich concealed her identity or fraudulently induced appellant to delay filing the action. (Compare Bernson v. Browning-Ferris Industries, supra, 7 Cal.4th 926, 936, 30 Cal.Rptr.2d 440, 873 P.2d 613 [].)
Appellant, however, argues that the four-year statute of limitations for legal malpractice applies. (Code Civ. Proc., § 340.6, subd. (a)(3).) (Laird v. Blacker (1992) 2 Cal.4th 606, 609, 7 Cal.Rptr.2d 550, 828 P.2d 691; emphasis added.)
Appellant has cited no authority for the novel claim that a third party (i.e., a nonclient) may invoke Code of Civil Procedure section 340.6 to toll the statute of limitations when suing an attorney for defamation. Because the causes of action for libel per se, slander per se, interference with contractual relations, and interference with prospective business advantage are based on the same publication, they are all time barred. We reject the argument that appellant could sue Johnson for defamation, obtain a $120,000 judgment, and file a new action against Attorney Petrovich based on the same publication.
The trial court also ruled that the third amended complaint was barred by the litigation privilege. Civil Code section 47, subdivision (b)(2), provides an absolute privilege for publications in a judicial proceeding. The privilege has been broadly construed to apply to demand letters and prelitigation communications by an attorney. (Rubin v. Green (1993) 4 Cal.4th 1187,1193-1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044.) (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 29, 61 Cal.Rptr.2d 518, emphasis added.)
Appellant contends that the litigation privilege is qualified because the defamatory statements were used to "leverage" a settlement. Appellant's reliance on Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, 81 Cal.Rptr.2d 392 is misplaced. There, the plaintiff sued his former employer (Proton) for libel after it sent a demand letter to plaintiffs current employer to stop soliciting Proton's employees and customers. The letter falsely...
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