Case Number: 18STLC02881 Hearing Date: September 09, 2019 Dept: 94

MOTION FOR SUMMARY ADJUDICATION

(CCP § 437c)

TENTATIVE RULING:

Defendant / Cross-Complainant Marcia Golan’s Motion for Summary Adjudication is DENIED.

ANALYSIS:

I. Factual and Procedural History

In October 2015, Defendant Marica Golan (“Defendant”) executed a fee agreement hiring Plaintiff Deborah Davis dba Law Offices of Deborah Davis (“Plaintiff”) to represent her as legal counsel in a dissolution proceeding (“the dissolution proceeding”). In December 2015, the dissolution proceeding resolved with a stipulation for entry of judgment pursuant to which Defendant received certain real property as her sole and separate property. The parties’ contractual relationship ended in June 2016. In July 2016, Plaintiff filed a Notice of Lien in the dissolution proceeding. In October 2017, Plaintiff filed an Amended Notice of Lien and recorded it with the Los Angeles County Recorder’s Office.

Plaintiff filed the instant action for breach of contract against Defendant on February 20, 2018, and filed the First Amended Complaint on March 12, 2018. Plaintiff alleges Defendant failed to pay fees owed for her work on the dissolution proceeding. Defendant cross-complained for breach of fiduciary duty, slander, among other things, with the First Amended Cross-Complaint filed on May 15, 2018. On May 9, 2019, the Court granted Defendant’s Motion to Expunge the Amended Notice of Lien. On August 26, 2019, the Court denied Plaintiff’s Motion to Amend the Answer to the Cross-Complaint.

Defendant filed the instant Motion for Summary Adjudication on June 25, 2019 and Plaintiff’s opposition was filed on August 26, 2019.

II. Discussion

Defendant moves for summary adjudication as to her First Amended Cross-Complaint’s second cause of action for slander of title and third cause of action for cancellation of cloud on title. Defendant contends that there are no triable issues of material fact as to Plaintiff’s liability for slander of title. Defendant’s request for judicial notice of the amended notice of lien and order expunging the same is granted pursuant to Evidence Code section 452, subdivisions (c) and (d). Plaintiff’s evidentiary objections are overruled as to Nos. 1, 2, 7, 8-13, and sustained as to Nos. 3-6.

Slander of title is a tort claim brought for disparagement of title to either real or personal property, which affects its vendibility or salability. (M.F. Farming, Co. v. Couch Distributing Co. (2012) 207 Cal.App.4th 180, 199. The elements of a claim for slander of title are: (1) publication; (2) without privilege or justification; (3) that is false; and (4) causes direct and immediate pecuniary loss. (Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, 664 (citing Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1051).)

Defendant presents the following undisputed facts: Defendant hired Plaintiff as her family law attorney in October 2015, and the parties ended their arrangement in about June 2016. (Motion, Separate Statement Fact No. 1.; Golan Decl., ¶3.) In October 2017, Plaintiff recorded a document with respect to the dissolution proceeding entitled “Amended Notice of Lien” as instrument number 20171211732. (Motion, Separate Statement Fact No. 2.; Golan Decl., ¶4.) The Amended Notice of Lien asserts that “effective October 1, 2015 Petitioner, Marcia Golan, granted the undersigned a lien against any and all claims, causes of action, or recovery that are the subject of the above-captioned action. . . PLEASE TAKE FURTHER NOTICE that this lien attaches to all assets and property subject of the above-captioned action, including, but not limited to, the real property located at 9731 Kirkside Rd., Los Angeles, California 90035 . . .” (Motion, Separate Statement Fact No. 3; RJN Exh. 1.) Plaintiff filed the instant action in February 2018 for unpaid attorneys’ fees in the dissolution proceeding. (Motion, Separate Statement No. 4; Riley Decl., ¶3.) Defendant filed the Cross-Complaint for slander of title, cancellation of cloud on title and breach of fiduciary duty, and then filed a motion to expunge the Amended Notice of Lien. (Motion, Separate Statement Fact Nos. 5, 10; Riley Decl., ¶¶5, 8 and Exhs. 1-2.) The Court granted the motion to expunge on May 9, 2019. (Motion, Separate Statement Fact No. 12; Riley Decl., ¶9 and Exh. 3; RJN, Exh. 2.)

Recording the Amended Notice of Lien was via publication by Plaintiff. (Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1034 [“Where a defendant slanders title by means of a recorded instrument, thereby publishing in the chain-of-title a false and disparaging view of the nature of the plaintiff’s right or interest in the land, the plaintiff is obviously put in a position where his only viable recourse is to bring suit to clear his title of the recorded falsehood.”].) Defendant, however, has not shown that the publication was without privilege or justification. Defendant relies solely on the Court’s May 9, 2019 ruling for the proposition that recording the Amended Notice of Lien was without legal justification and caused a “cloud on title.” No part of the Court’s ruling made such a finding. The Court’s finding was solely that Plaintiff had not shown that such a lien was a recordable instrument. Indeed, the Court made no determination as to whether such a publication was privileged or whether the statement in the Amended Notice of Lien was true or false. The Court further expressly stated in its order expunging the Amended Notice of Lien that it made no ruling as to the claims at issue in this action. Defendant offers no authority as to what renders a recorded instrument privileged or false and no evidence as to either.

The final element for slander of title requires Defendant to demonstrate that recordation of the Amended Notice of Lien caused her direct and immediate pecuniary loss. She provides authority that attorneys’ fees are recoverable where necessary to clear slandered title. (Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1034-1035.) However, as she has not shown she can prevail on the claims for slander of title and cancellation of cloud on title, the Court cannot find the fees incurred to bring the cross-claims were necessary. Defendant, therefore, has not carried her initial burden of proof regarding the second and third causes of action in the First Amended Cross-Complaint.

Furthermore, in opposition, Plaintiff raises triable issues of fact as to whether recording the Amended Notice of Lien was privileged. Specifically, she argues that communications filed with official bodies are privileged under Civil Code section 47’s absolute and qualified litigation privileges. (Hagberg v. Calif. Fed. Bank FSB, 32 Cal.4th 350, 375; Wilton v. Mountain Wood Homeowners Assoc., Inc. (1993) 18 Cal.App.4th 565, 570-571.) Plaintiff also points out that the Motion does not address the truth or falsity of the statements in the Amended Notice of Lien. Finally, Plaintiff challenges the necessity of the attorneys’ fees incurred by Defendant in bringing the First Amended Cross-Complaint. (Opp., Separate Statement Fact Nos. 6, 13.)

Based on the foregoing, Defendant’s Motion for Summary Adjudication is denied.

Plaintiff to give notice.