White v. Lieberman

• Decision Date: 29 October 2002
• Docket Number: No. B147327.,B147327.
• Citation: 126 Cal.Rptr.2d 608,103 Cal.App.4th 210
• Court: California Court of Appeals Court of Appeals
• Parties: K. Martin WHITE, Plaintiff and Appellant, v. Lawrence R. LIEBERMAN et al., Defendants and Appellants; Old Republic Title Co., et al., Defendants and Respondents.

126 Cal.Rptr.2d 608

103 Cal.App.4th 210

K. Martin WHITE, Plaintiff and Appellant, v. Lawrence R. LIEBERMAN et al., Defendants and Appellants Old Republic Title Co., et al., Defendants and Respondents.

No. B147327.

Court of Appeal, Second District, Division 6.

October 29, 2002.

As Modified on Denial of Rehearing November 27, 2002.

Raymond D. Kitlas for Plaintiff and Appellant K. Martin White.

Lewis, Brisbois, Bisgaard & Smith, LLP., Kenneth C. Feldman, Craig L. Dunkin and Jeffry A. Miller for Defendants and Appellants Lawrence R. Lieberman and Belin, Rawlings & Badal.

Stephanie J. Shulman for Defendant and Respondent Old Republic Title Company.

Regan C. Nagel for Defendant and Respondent Chicago Title Insurance Company.

Lawrence R. Lieberman for Defendants and Respondents Levinson & Lieberman; Levinson, Lieberman & Snyder; and Levinson, Lieberman & Maas.

GILBERT, P.J.

As a rule, the statute of limitations for a malicious prosecution action begins to run on the date judgment is entered in the trial court. It is tolled while the case is on appeal. If the judgment is affirmed, the statute begins to run again when the Court of Appeal issues its remittitur.

Here we hold that when reversal of a trial court judgment in the Court of Appeal gives rise to a possible cause of action for malicious prosecution, the statute of limitations first begins to run on the date the Court of Appeal issues its remittitur.

We also decide an issue concerning attorney's fees pursuant to Code of Civil Procedure section 425.16, the strategic lawsuit against public participation (anti-SLAPP) statute.¹ A defendant who prevails in a motion to strike under the statute is entitled to attorney's fees. Here, an attorney files an action on behalf of his clients which is reversed on appeal. The attorney is then sued for malicious prosecution. The trial court sustains a demurrer to the complaint. We hold the attorney is entitled to attorney's fees under the anti-SLAPP statute.

FACTS

Bonadiman Action

This case arose out of a dispute over a large tract of land in San Bernardino County. A portion of the tract was subject to an action for partition. K. White became a party to the action, claiming an undivided interest through a 1939 quit-claim deed. The trial court determined that the 1939 deed was a mortgage that had been extinguished, and that White had no interest in the property. White appealed, but the Court of Appeal affirmed. (Bonadiman v. White (Feb. 8, 1994, E009307, E009308) [nonpub.opn.].)

Mazich Action

While the appeal in the Bonadiman action was pending, White turned his attention to another portion of the tract described in the 1939 deed. This portion was developed with 87 residences. White's attorney delivered a letter to residents of the tract stating that White is a successor-in-interest to the grantees of the 1939 deed and that White demands concurrent possession of their homes as a tenant in common.

John Mazich and other homeowners brought an action against White alleging quiet title, adverse possession and slander of title. Lawrence R. Lieberman represented the homeowners in that action. The homeowners obtained a summary adjudication on the quiet title cause of action on the ground that White was collaterally estopped by the Bonadiman decision from claiming any title through the 1939 deed. The homeowners dismissed the adverse possession cause of action. The matter proceeded to a court trial before Judge Duane Lloyd on the slander of title cause of action.

After hearing the evidence, Judge Lloyd found that White had slandered the homeowners' titles. Judge Lloyd stated that the parties stipulated the only damages arising from slander of title are the claims of the homeowners' title insurers for reimbursement for attorney's fees and costs incurred in clearing title. The court ordered the homeowners to submit a cost bill for the fees and costs subject to White's motion to tax costs.

Judge Lloyd retired from the bench two days after the trial. Lieberman, the homeowners' attorney, obtained formal judgment from Judge Keith Davis.

Lieberman drafted the judgment for Judge Davis' signature. The draft states, "Damages in the total amount of $41,438.22 are awarded against defendant as follows[.]" The draft contains a box listing four title insurance companies and shows how the damages are to be allocated among them. Judge Davis signed the judgment, but struck the sentence "Damages in the total amount of $41,438.22 are awarded as follows[.]" The box showing allocation of damages was left undisturbed. Lieberman sent White's attorney a copy of the judgment attached to a notice of entry of judgment. But the copy did not show that the court struck the sentence awarding damages.

White appealed the judgment only as it related to the slander of title cause of action. The Court of Appeal reversed on the ground that the slander of title cause of action was not supported by substantial evidence. The appellate court concluded the notices sent by White to the homeowners were within the litigation privilege. (Mazich v. White (Nov. 18, 1998, E021294) [nonpub. opn.].)

Present Action

White sued Lieberman, law firms with which Lieberman has been associated, and a number of title insurance companies (hereafter collectively "Lieberman") for maliciously prosecuting the slander of title cause of action. The trial court sustained Lieberman's demurrer with leave to amend on the grounds that the action was barred by the statute of limitations and that the homeowners' victory in the trial court conclusively established probable cause.

White filed a first amended complaint. He alleged that the judgment in the slander of title cause of action was void ab initio. He claimed that the money amounts stated in the judgment were not the product of an adversary hearing; the judgment was based on fraudulent representations by Lieberman and was entered in favor of non-parties. The trial court sustained Lieberman's demurrer to the first amended complaint without leave to amend and denied White's motion for a new trial.

DISCUSSION

White's Appeal

A demurrer tests the sufficiency of a pleading by raising questions of law. (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286, 200 Cal.Rptr. 354.) In assessing the sufficiency of a demurrer, all facts pleaded in the complaint must be deemed true. (Holland v. Thacher (1988) 199 Cal. App.3d 924, 928, 245 Cal.Rptr. 247.) If upon consideration of all the facts stated it appears that the plaintiff is entitled to any relief, the complaint will be held good. (Chase Chemical Co. v. Hartford Accident & Indemnity Co. (1984) 159 Cal.App.3d 229, 242, 205 Cal.Rptr. 469.) If there is a reasonable possibility that a defect in the complaint can be cured by amendment, the court must allow the amendment. (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal. Rptr.2d 543, 819 P.2d 1.) The burden is on the plaintiff, however, to demonstrate how the complaint can be amended. (Ibid.)

I

We reject White's contention that the statute of limitations did not bar his cause of action for malicious prosecution. The statute of limitations for a malicious prosecution action is one year'. (Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc. (1988) 202 Cal.App.3d 330, 334, 248 Cal.Rptr. 341.) As a rule, it accrues when judgment is entered in the trial court. (Id. at pp. 334-335, 248 Cal.Rptr. 341.)

"If the underlying action is appealed, the statute is tolled during the pendency of the appeal, from the time notice of appeal is filed to the time the remittitur is issued by the appellate court." (Korody-Colyer v. General Motors Corp. (1989) 208 Cal.App.3d 1148, 1151, 256 Cal.Rptr. 658, citing Gibbs v. Haight, Dickson, Brown & Bonesteel (1986) 183 Cal.App.3d 716, 228 Cal.Rptr. 398.)

Lieberman argues that the statute of limitations began running on November 18, 1989, when the Court of Appeal issued its opinion reversing the judgment on the slander of title cause of action. Lieberman posits that after the statute ran for 41 days, it was tolled pending a petition for review with the California Supreme Court. The statute then began running again when the remittitur was filed on February 23, 1999. Because White did not file his complaint until March 24, 2000, Lieberman contends White's action is time-barred.

White argues that, at the very earliest, the statute of limitations ran when the trial court entered judgment on March 26, 1999. White acknowledges the authorities that hold that when cases are tolled on appeal, the statute of limitations begins running on the issuance of the remittitur. (Rare Coin Galleries, Inc. v. A-Mark Coin Co., Inc., supra, 202 Cal.App.3d at p. 334, 248 Cal.Rptr. 341; Korody-Colyer v. General Motors Corp., supra, 208 Cal.App.3d at p. 1151, 256 Cal.Rptr. 658.) He contends those cases do not apply because they involve the affirmance of the trial court judgment. Here, the trial court judgment was reversed.

In cases affirmed on appeal, the statute of limitations begins running again on the issuance of the remittitur. There is no reason that the same rationale should not apply to reversals. The only difference is that in a reversal the statute first begins running on the issuance of the remittitur. Affirmance or reversal, the remittitur activates the statute of limitations. This rule provides uniformity and predictability.

White had one year to bring his malicious prosecution action after the Court of Appeal issued its remittitur on February 23, 1999. Indeed, White was aware of the decision adverse to Lieberman by the Court of Appeal on the date it issued its opinion. That the trial court waited more than a month after the remittitur issued to file a judgment should not give White a windfall. Under White's theory, if the trial court waited six months or two years after issuance of the remittitur, the statute would not begin to run until that time. This would undermine the policy that malicious prosecution actions are disfavored. (...