SHURPIN v. ELMHIRST

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Court of Appeal, Second District, Division 5, California.

Leslie S. SHURPIN, Plaintiff, Cross-Defendant and Respondent, v. Susanna Isaacs ELMHIRST, Defendant, Cross-Complainant and Appellant.

Civ. 66997.

Decided: October 19, 1983

Schreiber & Feller and Richard L. Feller, Beverly Hills, for defendant, cross-complainant and appellant. Lawrence Silver and Nancy C. Brown, Beverly Hills, for plaintiff, cross-defendant and respondent.

Defendant, cross-complainant and appellant Susanna Elmhirst (hereinafter Elmhirst) appeals from an order of dismissal of her cross-complaint initiated against plaintiff Leslie Shurpin (hereinafter Shurpin).   Elmhirst contends that a notice of lis pendens executed by Shurpin against her property was improper and consequently resulted in a slander of title and unwarranted interference with a contractual and economic advantage.   Accordingly, Elmhirst argues that the court improperly dismissed said causes of action against Shurpin.   We agree and reverse the order of dismissal of the trial court.

FACTS

Elmhirst was the owner of the “Arby property” which has a backyard and slope above and adjacent to Shurpin's property.   On February 16, 1980, mud and debris from the Arby property slid onto Shurpin's property destroying a portion of Shurpin's guest house.   Shurpin proceeded to construct a wall and swale at the edge of his property and requested that Elmhirst provide him with various reports and information regarding Elmhirst's homeowner's insurance policy.   Elmhirst subsequently entered into an escrow agreement for the sale of the Arby property to one Mr. Jeffrey Drezner.   Shurpin had been aware that Elmhirst was winding up her practice in California and was leaving the country.   On December 16, 1980, Shurpin became aware that Elmhirst's Arby property was in the process of being sold.1

On January 7, 1981, Elmhirst moved out of the country.   On that same day Shurpin filed his action for damages, injunctive relief and declaratory relief.   Shurpin believed that Elmhirst was engaging in delay tactics to allow her to sell the property, leave the country, and preclude him from enforcing his claim to abate the nuisance created by Elmhirst's alleged failure to adequately repair the hillside.2  Simultaneously, a lis pendens was filed.   As a consequence of this action and the filing of the lis pendens, the sale of the Arby property to Drezner fell through.   Subsequently, the notice of pendency was expunged by stipulated agreement and Elmhirst sold the property to another buyer but on less favorable terms.

In view of the damages that Elmhirst allegedly sustained by the loss of the Drezner sale, Elmhirst filed a cross-complaint against Shurpin for damages for interference with a contractual and economic advantage.   Her cross-complaint also sought damages for slander of title.   Shurpin successfully demurred to the cross-complaint.   Elmhirst's action was thereafter dismissed and she initiated this appeal.

Elmhirst contends that Shurpin's claims for trespass and nuisance, relating to the alleged harm to Shurpin's property as a result of conditions at the Arby property, cannot affect title to, or the right of possession of, Elmhirst's Arby property.   As a result, it is alleged that the filing of the lis pendens pursuant to Code of Civil Procedure section 409 was improper.

Shurpin counters by insisting that the filing of the lis pendens is an absolutely privileged act, and that the subsequent purchaser of the Arby property, which contained an alleged nuisance, cannot be compelled to abate said nuisance unless that purchaser is on notice of the existence of the nuisance prior to the consummation of the purchase.   He further maintains that one who is damaged by the alleged nuisance on adjoining property has some form of quasi-possessory interest in that property.

 It is accepted that the recording of a notice of lis pendens is absolutely privileged and applicable to “any publication ․ required ․ or permitted ․ by law in the course of a judicial proceeding to achieve the objects of the litigation ․ [when] the publication has a reasonable relation to the action․”  (Albertson v. Raboff (1956) 46 Cal.2d 375, 380–381, 295 P.2d 405;  emphasis added.)

 Under the general lis pendens statute, a lis pendens may be recorded in any action “concerning real property or affecting the title or the right of possession of real property.”  (Code Civ.Proc., § 409.)   The clear implication of “concerning real property” is to construe it as having the identical meaning as the words “affecting the title or the right of possession of real property.”  (Kendall-Brief Co. v. Superior Court (1976) 60 Cal.App.3d 462, 466–467, 131 Cal.Rptr. 515;  see also Cal. Lis Pendens Practice (Cont.Ed.Bar 1983) Preparation and Recording, § 2.7, p. 30.)

 Actions that affect title to or possession of real property include, among others, actions for specific performance of an agreement to sell real property (Brandolino v. Lindsay (1969) 269 Cal.App.2d 319, 325, 75 Cal.Rptr. 56);  to cancel a deed or other instrument affecting real property rights (Martin v. Lawrence (1909) 156 Cal. 191, 103 P. 913);  to foreclose a mortgage or deed of trust (Bolton v. Logan (1938) 30 Cal.App.2d 30, 85 P.2d 546);  actions for ejectment (McLean v. Baldwin (1902) 136 Cal. 565, 69 P. 259);  to rescind an agreement for purchase and sale of real property (Wilkins v. Oken (1958) 157 Cal.App.2d 603, 606, 321 P.2d 876);  to set aside a fraudulent conveyance (Putnam Sand & Gravel Co. v. Albers (1971) 14 Cal.App.3d 722, 92 Cal.Rptr. 636);  to challenge the claim of an owner of adjoining property to an access easement across the plaintiff's property (Kendall-Brief Co. v. Superior Court, supra, 60 Cal.App.3d 462, 131 Cal.Rptr. 515);  and to establish rights pertaining to a leasehold interest (Parker v. Superior Court (1970) 9 Cal.App.3d 397, 399, 88 Cal.Rptr. 352).   (See Cal. Lis Pendens Practice (Cont.Ed.Bar 1983) Preparation and Recording, § 2.7, pp. 30–31.)

 Certain statutes also permit recordation of a lis pendens in specified actions over and above the general authority found in Code of Civil Procedure, section 409.   Specific actions in which recordation of a lis pendens is authorized include actions to foreclose a mechanics lien (Civ.Code, § 3146);  actions by a public agency to enforce zoning regulations (Govt.Code, § 65908);  and actions to claim a right to real property owned or possessed by a decedent at the time of death (Prob.Code, § 851.5).  (Cal. Lis Pendens Practice (Cont.Ed.Bar 1983) Preparation and Recording, § 2.8, p. 32.)

Finally, a number of statutes require the recordation of a lis pendens in connection with certain types of actions.   A lis pendens must be recorded at the time the complaint is filed in actions including, but not limited to, actions by a public agency to declare a building uninhabitable (Code Civ.Proc., § 409.7);  actions to quiet title to real property (Code Civ.Proc., § 761.010);  actions to establish destroyed land records (Code Civ.Proc., § 751.13);  and actions to partition real property (Code Civ.Proc., § 872.250).  (Ibid.)

Shurpin filed an action for damages to his home caused by a mudslide.   He also sought injunctive relief to abate an alleged nuisance that was allegedly created when the Arby property was reconstructed.   He argues that the filing of a lis pendens on the Arby property is absolutely privileged in that only by the giving of constructive notice to prospective purchasers of the Arby property through the filing of a lis pendens could he maintain the right under Civil Code section 3483 to compel a successive owner of the property to abate the alleged nuisance on said property.

 Section 3483 provides that, “Every successive owner of property who neglects to abate a continuing nuisance upon, or in the use of, such property, created by the former owner, is liable therefor in the same manner as the one who first created it.”   There is no question that notice to the successive owner is required.  (Reinhard v. Lawrence Warehouse Co. (1940) 41 Cal.App.2d 741, 747, 107 P.2d 501.)   However, the question remains as to the type of notice required.

 Given the limited application intended for the use of a notice of lis pendens, and the knowledge of its effectiveness and frequent misuse by parties who seek to improperly encumber or prevent the sale of a property (see Castle, After Malcolm v. Superior Court and Peery v. Superior Court:  A Due Process Analysis of California Lis Pendens (1982) 70 Cal.L.Rev. 909, 910), we conclude that the use of lis pendens is an inappropriate form of notice for purposes of implementing Civil Code section 3483.

 A nuisance cause of action does not affect title to, or right of possession of, the real property in question.   Nor does it grant unto an adjacent property owner any limited possessory interest in the adjacent property.   Consequently, the recordation of a lis pendens as a procedure for purposes of notifying subsequent purchasers of this type of pending litigation does not fall within the accepted range of actions that have been held to affect title to or possession of real property (Code Civ.Proc., § 409) or those statutes specifically or impliedly authorizing or requiring its use.

Since Shurpin's recordation of the notice of lis pendens was not required, permitted or reasonably related to his particular action, it was not authorized by law.   Therefore, it cannot be afforded an absolute privilege as set forth by Civil Code section 47.  Woodcourt II Limited v. McDonald Co. (1981) 119 Cal.App.3d 245, 173 Cal.Rptr. 836, relied upon by Shurpin, is not authority to the contrary.3

In Woodcourt II Limited, the court addressed a situation where a lessee of real property brought an action for injunctive relief, specific performance, a decree quieting title to an easement, an accounting, and damages against the lessor.   Lessee recorded a notice of lis pendens on the property.   The property owners cross-complained for abuse of process and slander of title.   The court concluded that the action for abuse of process was not actionable because the recording of the lis pendens did not constitute process in the sense that “abuse of process” is used.  (Id., at p. 251, 173 Cal.Rptr. 836.)   Furthermore, in applying “the reasonable relation to the action” standard of Albertson v. Raboff, supra, 46 Cal.2d 375, 295 P.2d 405, the court expressly found that “[O]n the record before the trial court, the legitimate relationship between the lis pendens and the main lawsuit is patently obvious.”  (Id., at p. 251, 173 Cal.Rptr. 836.)   Consequently, the recordation of the lis pendens was absolutely protected.

 Since Shurpin's recordation of a lis pendens was to further an unrelated action, it is not absolutely privileged.   The question therefore arises as to the extent of recoverable damages, if any, which Elmhirst may sue for.   Generally, a landowner is limited to a cause of action for malicious prosecution where there is an unwarranted recording of a lis pendens.   (Woodcourt II Limited v. McDonald Co., supra, 119 Cal.App.3d at p. 251, 173 Cal.Rptr. 836.)   An action for malicious prosecution accrues when the underlying action that supported the recordation of the lis pendens is brought maliciously and without probable cause.  (Cal. Lis Pendens Practice (Cont.Ed.Bar 1983) Preparation and Recording, § 2.6, p. 29.)   However, such an action would be inappropriate here as the underlying nuisance action brought by Shurpin does not appear to have been maliciously prosecuted.

 The case law is clear that actions for slander of title (see Albertson v. Raboff, supra, 46 Cal.2d at p. 379, 295 P.2d 405;  Sheets v. Superior Court, supra, 86 Cal.App.3d at p. 70, 149 Cal.Rptr. 912) and interference with an economic right (Brody v. Montalbano, supra, 87 Cal.App.3d at p. 738, 151 Cal.Rptr. 206) do not exist where an absolute privilege is afforded the recordation of a lis pendens.   Our analysis of this unique factual situation, however, leads us to conclude that Shurpin's recordation of a lis pendens is not absolutely privileged and that Elmhirst may continue her causes of action as stated.

The order of the trial court is reversed.

FOOTNOTES

1.   However, Shurpin insists that it was not until January of 1981 that he was advised that Drezner was the prospective purchaser of the property.

2.   See Shurpin v. Elmhirst et al., 148 Cal.App.3d 94, 195 Cal.Rptr. 737, filed concurrently herewith.

3.   Likewise, Albertson v. Raboff, supra, 46 Cal.2d at pp. 380–381, 295 P.2d 405;  Sheets v. Superior Court (1978) 86 Cal.App.3d 68, 149 Cal.Rptr. 912, and Brody v. Montalbano (1978) 87 Cal.App.3d 725, 738, 151 Cal.Rptr. 206 are not in conflict.

STEPHENS, Associate Justice.

FEINERMAN, P.J., and HASTINGS, J., concur. Hearing denied;  BIRD, C.J., dissenting.

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