ALEX PLADOTT v. JOSEF BLANKSTEIN (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Alex Pladott and Assael Pladott appeal from the judgment entered in favor of respondents Carmella and Josef Blankstein, on the Pladotts' complaint, after the Blanksteins' demurrer was sustained without leave to amend.   We affirm.

Background 1

In 1996, Alex Pladott and his sister and brother-in-law, Carmella and Josef Blankstein, entered into an oral agreement concerning a house which Alex Pladott owned.   The terms are contested, but we may say that the parties agreed, at least, that the Blanksteins would assist Alex Pladott, who was having financial difficulties, by buying his house;  that Alex Pladott (and Assael, his son) would continue to live in the house;  and that Alex Pladott would repurchase the house at a later time.

This agreement gave rise to three lawsuits.

The Unlawful Detainer Action:  Case No. 05B00904

There was no repurchase within what the Blanksteins asserted was the relevant time period.   In November 2004, the Blanksteins served the Pladotts with a 60 day notice to quit, and in February 2005, they filed an unlawful detainer action.   In January 2006 they obtained a judgment of possession (with damages to be adjudicated later), after their motion for summary judgment was granted.

Alex Pladott filed a notice of appeal, but did not seek a stay.   The Blanksteins obtained possession in March 2006, and sold the house later that year.

Then, in April of 2008, the Appellate Division of the Superior Court reversed the judgment, finding a triable issue of fact on whether Alex Pladott was a tenant at will, and thus subject to an unlawful detainer action, or whether he was a vendee in possession, and thus not subject to such an action.

Apparently, no further action was taken in the case until March 2011, when it was dismissed as moot.

While the unlawful detainer was pending in the trial court, Alex Pladott filed a civil action against the Blanksteins.   He alleged that he and the Blanksteins had agreed that he would repurchase the house within three years for the price the Blanksteins paid on the condition that he pay specified expenses, that he paid those expenses, that he had attempted to repurchase the house within the agreed-on period, but that the Blanksteins breached the agreement by refusing to execute a purchase agreement or escrow instructions and to convey the property to him.

Judgment was entered in the Blanksteins' favor after their demurrer was sustained without leave to amend, but in January 2007, in B189283, we reversed, finding that as to some of the causes of action, the complaint sufficiently stated a cause of action.   Our holding was based on our finding that the complaint had sufficiently alleged the part performance exception to the statute of frauds.

The case has proceeded in the trial court.   A fourth amended complaint has been filed and the Blanksteins inform us that a motion for summary judgment is pending.

The Instant Case:  Case No. LC081576

This case was filed by Alex Pladott against the Blanksteins on May 30, 2008.   (Assael Pladott became a plaintiff in the first amended complaint.)   There have been demurrers, grants of leave to amend, and amended complaints.   This appeal is from the trial court's order sustaining the Blanksteins' demurrer to the third amended complaint, without leave to amend, and dismissing the case.

One more procedural note:  The complaint in this case at one point named as defendants two attorneys who represented the Blanksteins in the unlawful detainer action.   In August 2010, in B215975, we affirmed the trial court's order granting the lawyers' special motions to strike.  (Code Civ. Proc., § 425.16.)

Standard of Review

“For purposes of this appeal we accept as true the properly pled factual allegations of the complaint.  (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)   Furthermore, the allegations of the complaint must be read in the light most favorable to the plaintiff and liberally construed with a view to attaining substantial justice among the parties.  (Code Civ. Proc., § 452;  King v. Central Bank (1977) 18 Cal.3d 840, 843.)   With these considerations in mind, we review the complaint de novo to determine whether it alleges facts sufficient to state a right to relief under any legal theory.  (Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124, 1131–1132;  5 Witkin Cal. Procedure (3d ed.   1985) Pleading, § 942, p. 377, and cases cited.)”  (Venice Town Council v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1557.)

Discussion

The causes of action in the third amended complaint, the operative complaint, are titled fraud, declaratory relief, fraudulent abuse of process, setting aside a prior judgment, wrongful eviction, and intentional infliction of emotional distress.

The factual allegations are that the Blanksteins made fraudulent misrepresentations to the court in the unlawful detainer action.   The complaint alleged that at the time they filed and maintained the unlawful detainer action, the Blanksteins knew that Alex Pladott was a vendee in possession, and not a tenant, but that in verified pleadings and in the 60–day notice they represented that he was a tenant;  and that documents produced in discovery (after being initially withheld) established that the Blanksteins had no evidence to support the unlawful detainer action and knew or should have known that Alex Pladott was a vendee in possession.

The Blanksteins' demurrer contended, inter alia, that the third amended complaint failed to state causes of action for intentional infliction of emotional distress or for abuse of process, that Assael Pladott did not have standing, and that the entire complaint was barred by the other pending actions, by the statute of limitations, and by the litigation privilege.

The trial court sustained the demurrer on numerous grounds, finding, inter alia, that it was an impermissible collateral attack on the ruling in the unlawful detainer action, was barred by the litigation privilege, and that at least some causes of action were barred by the statute of limitations.   We agree that all causes of action are barred by the litigation privilege and thus that the complaint does not state a cause of action, on any cause of action.   We need not and do not reach any of the other grounds.

“Civil Code section 47, subdivision (b) defines what is commonly known as the ‘litigation privilege.’  ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings;  (2) by litigants or other participants authorized by law;  (3) to achieve the objects of the litigation;  and (4) that have some connection or logical relation to the action.’  (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)[¶]  The litigation privilege is absolute;  it applies, if at all, regardless whether the communication was made with malice or the intent to harm.  [Citation.]  Put another way, application of the privilege does not depend on the publisher's ‘motives, morals, ethics or intent.’  [Citation.]  Although originally applied only to defamation actions, the privilege has been extended to any communication, not just a publication, having ‘some relation’ to a judicial proceeding, and to all torts other than malicious prosecution.   [Citations.]”  (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 912–913.)

“If there is no dispute as to the operative facts, the applicability of the litigation privilege is a question of law.  [Citation.]  Any doubt about whether the privilege applies is resolved in favor of applying it.   [Citation.]”  (Kashian v. Harriman, supra, 98 Cal.App.4th at p. 913.)

This case falls squarely under these rules.   As Alex Pladott himself said at oral argument in the trial court “the whole case ․ is about whether or not they had the right to utilize the jurisdiction of summary procedure.”

All of the third amended complaint's allegations concern communications made in judicial proceedings by the litigants.   They are privileged communications.

The Pladotts argue that the litigation privilege does not apply because the complaint alleges criminal conduct.   They cite Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, which held that “the litigation privilege does not apply to the following crimes:  perjury (Pen.Code, § 118 et seq.);   subornation of perjury (id., § 127);  criminal prosecution under Business and Professions Code section 6128;  false report of a criminal offense (Pen.Code, § 148.5);  and ‘attorney solicitation through the use of “runners” or “cappers.” ’  [Citations.]  State Bar discipline of attorneys who engage in solicitation and enforcement of the antisolicitation statute is also excepted from the litigation privilege.”  (Id. at p. 1246.)

We cannot see that the exceptions apply here.   This complaint does not involve prosecution for any crime, and “․ the privilege extends even to civil actions based on perjury.  (Jacob B. v. County of Shasta (2007) 40 Cal.4th 948, 956.)   In the paragraphs cited by the Pladotts, the complaint alleges that the Blanksteins filed false pleadings and concealed the true information from the court.   This is a classic case for the application of the litigation privilege.

The Pladotts also cite the rule that the litigation privilege does not apply to noncommunicative conduct.  (Kimmel v. Goland (1990) 51 Cal.3d 202.)   They do not explain why this case involves such conduct, and we do not believe that it does.

“Because the litigation privilege protects only publications and communications, a ‘threshold issue in determining the applicability’ of the privilege is whether the defendant's conduct was communicative or noncommunicative.  [Citation.]  The distinction between communicative and noncommunicative conduct hinges on the gravamen of the action.  [Citations.]  That is, the key in determining whether the privilege applies is whether the injury allegedly resulted from an act that was communicative in its essential nature.  [Citations.]  The following acts have been deemed communicative and thus protected by the litigation privilege:  attorney prelitigation solicitations of potential clients and subsequent filing of pleadings in the litigation [citation], and testimonial use of the contents of illegally overheard conversation.  [Citation.]  The following acts have been deemed noncommunicative and thus unprivileged:  prelitigation illegal recording of confidential telephone conversations [citation];  eavesdropping on a telephone conversation [citation];  and physician's negligent examination of patient causing physical injury.  [Citation.]  [¶] The ‘[p]leadings and process in a case are generally viewed as privileged communications.’  [Citation.]”  (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1058.)

Under these standards, the allegations here are of privileged communications.

Finally, the Pladotts contend that the court erred by awarding costs to the Blanksteins.   The contention is as follows:  at the hearing on the demurrer, the court did not say that the Blanksteins were to recover costs.   Yet, the Blanksteins' proposed judgment included the proviso that “defendants are to recover costs on appeal.”   From this, the Pladotts conclude that the court awarded costs “in blind reliance” on the proposed judgment.

We see no error.   The Pladotts had an opportunity to object to the proposed judgment and in fact did so, raising this contention.   The court included the finding on costs in its order, but we do not assume that it made its ruling in ignorance of the situation.   Instead, the court made a routine finding that costs would be awarded.   The Pladotts do not contend that the ruling was wrong on the merits, and it is affirmed.

Disposition

The judgment is affirmed.   Respondents to recover costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. We grant the Blanksteins' request that we take judicial notice of a reporter's transcript in the unlawful detainer case and of the fourth amended complaint in the first civil action..  FN1. We grant the Blanksteins' request that we take judicial notice of a reporter's transcript in the unlawful detainer case and of the fourth amended complaint in the first civil action.

TURNER, P.J. KRIEGLER, J.