West Inv. Co. v. Moorhead

• Decision Date: 27 October 1953
• Citation: 262 P.2d 322,39 A.L.R.2d 833,120 Cal.App.2d 837
• Court: California Court of Appeals Court of Appeals
• Parties: , 39 A.L.R.2d 833 WEST INV. CO. v. MOORHEAD et al. Civ. 19604.

Page 322

262 P.2d 322

120 Cal.App.2d 837, 39 A.L.R.2d 833

WEST INV. CO. v. MOORHEAD et al.

Civ. 19604.

District Court of Appeal, Second District, Division 2, California.

Oct. 27, 1953.

Johnson & Reitz and Thomas F. McCue, North Hollywood, for appellant.

Randolph J. Soker, Youngdahl & Glick, Los Angeles, for respondents.

FOX, Justice.

Plaintiff appeals from a judgment of dismissal of its action for slander of title entered after a demurrer to its second amended complaint was sustained without leave to amend.

The material averments in plaintiff's second amended complaint recite that defendants maliciously entered into a conspiracy whose object was to impugn plaintiff's title to 155 parcels of real property by means of written and oral declarations calculated to cast clouds on said titles. The complaint alleges that pursuant to this conspiracy, defendant Moorhead filed an action on December 29, 1950, in the Superior Court of Los Angeles County, entitled 'Paul G. Moorhead, Plaintiff, v. Safeway Homes, Ltd., a corporation, * * * West Investment Company, a corporation, et al., Defendants,' Case No. 581468. In that action Moorhead, a defendant herein, is alleged to have fraudulently and falsely claimed to have certain rights and interests in about 155 parcels of property described in the complaint. On the same day the above action was initiated, defendant Moorhead's attorney, also a defendant herein, filed a notice of lis pendens in the office of the County Recorder.

The complaint alleges that both the filing of the action and the recording of the lis pendens referred to above was done with full knowledge of the falsity of the claims asserted and with the intent that it would cause damage to plaintiff, who was then engaged in constructing dwelling houses and installing street improvements on all the said 155 parcels of property, and who had already conveyed title to all but 70 of the parcels described. Plaintiff further alleged that at the time the action was commenced and the lis pendens filed, defendants were acting maliciously pursuant to their conspiracy, with knowledge of the fraudulence of their claims, knowing well that plaintiff alone was the owner of the remaining 70 parcels, that it had contracted in writing to sell numerous of the remaining 70 parcels to various purchasers, for which escrows had been opened, and that the recordation of the notice of lis pendens would prevent plaintiff from performing its obligations under the sales contracts and would impair the vendibility of the said 70 parcels.

It is alleged that after discovering the above facts, plaintiff made numerous demands upon defendants to dismiss their action No. 581468 as to plaintiff and to revoke said lis pendens notice insofar as it related to plaintiff's 70 parcels, but that notwithstanding such demands defendants failed and refused to dismiss the action as to plaintiff and refused 'to discharge, cancel, revoke or alter' the lis pendens notice until May 17, 1951. The complaint states that the filing and maintenance of the action and the recording of the lis pendens slandered plaintiff's title to the 70 parcels, constituted a malicious disparagement thereof, and both decreased their value and impaired their vendibility, causing damage to plaintiff in the sum of $70,000. The remainder of the complaint recites in particular detail the specific items of damage included in the figure of $70,000 which are alleged to have flown from the claimed malicious slander of title.

Defendants' demurrers to the second amended complaint were overruled, whereupon they filed their respective answers. Thereafter the court granted defendants' motion for reconsideration of their demurrers, and upon rehearing the demurrers were sustained without leave to amend. Plaintiff appeals from the resulting judgment of dismissal.

In its argument in support of the judgment, defendants rely upon the reasons advanced by the trial court in dismissing plaintiff's complaint. These are: (1) the recordation of a notice of lis pendens is privileged as being a communication in the due course of a judicial proceeding. Civil Code, sec. 47, subd. 2; (2) in any event, the notice of lis pendens speaks only the truth and cannot form the basis of the present action. Neither of these arguments is tenable.

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...