NORMANDY TOWERS LIMITED v. EDDY (1987)

Plaintiffs and appellants Normandy Towers, Limited (Normandy), and Sheldon Temkin, Ida Temkin, William H. Temkin, Jr., and William H. Temkin, Sr. (the Temkins), appeal from an order of dismissal of their first amended complaint filed against defendants and respondents Richard A. Eddy (Eddy), and Loeb & Loeb, Ira S. Rubin, Dale L. Gronemeier, and Gerald D. Kleinman (the attorney-defendants).   Dismissal of said complaint followed the trial court's sustaining of demurrers without leave to amend.

SUMMARY STATEMENT

In a complaint for damages dated September 29, 1983, and a first amended complaint dated May 3, 1985, Normandy and the Temkins attempted to state four causes of action:  malicious prosecution, slander of title, abuse of process, and conspiracy to interfere with economic advantage.¹  Finding all causes of action to be defective, the trial court sustained demurrers without leave to amend.   Its dismissal of the action on September 19, 1985, led to this appeal.

Because Normandy and the Temkins have failed to demonstrate a right to relief under the law, the trial court's judgment is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND 2

Normandy, a California limited partnership, was the general partner of Sunset Towers, Ltd. (Sunset) from 1978–1982, the time during which the events giving rise to this case took place.   The Temkins were general and limited partners of Normandy.   Sunset, in turn, was the record owner of real property in Los Angeles which it was in the process of developing as a federally approved senior citizens' housing project (the project) under Normandy's direction.

This case arises from Eddy's filing of a lis pendens on the project in connection with a judgment for $303,740.92 which Eddy obtained in San Diego County on May 20, 1981, against one William Nemour (Nemour).   Nemour was a general partner of Normandy when it was originally formed on or about April 1, 1977.   His services, valued at $300,000, constituted his investment in Normandy, and he was entitled to $300,000 out of the first $600,000 realized by the partnership.   An amended certificate of limited partnership recorded September 1, 1978, indicated Nemour had become a limited partner but that the amount of his distribution and profit ratio had not changed, even though his capital investment was at that time restated to be only $33.34.

Eddy's judgment against Nemour was later recorded in Los Angeles County.   When it was not promptly satisfied, Eddy filed a petition for charging order in the Los Angeles Superior Court on June 16, 1981, to charge Nemour's interest in Normandy with the amount of the judgment.³  (Eddy v. Temkin, supra, 167 Cal.App.3d at p. 1117, 213 Cal.Rptr. 597.)   The very same day, an amended certificate of limited partnership was recorded for Normandy, showing Nemour was no longer a partner.  (Ibid.)

Based upon various circumstances surrounding the purported transfer of Nemour's interest, the court which ruled on the petition for charging order concluded Nemour was still a partner in Normandy and that the amended certificate had been “prepared in order to fraudulently conceal” his interest.   The court issued the charging order on February 9, 1982.⁴

Meanwhile, on June 26, 1981, the attorney-defendants, on Eddy's behalf, recorded a lis pendens against the project,⁵ giving notice of the petition for charging order.   The recording of the lis pendens appears to have impeded Sunset's ability to furnish a policy of title insurance showing no liens or clouds on the title, which was needed in order to convert a construction loan of approximately $6,400,000 at 16 percent per annum to a permanent and more favorable federally subsidized 7.5 percent loan.

During the course of construction, Normandy agreed in August 1981, in exchange for “additional advances” made by certain limited partners of Sunset, to transfer its entire interest in Sunset to them, subject to recapture by the end of January 1982.   Normandy expected that the loan conversion would be completed before that date, at which time it would be able to redeem its share of the project.   Thus, the closing of the permanent loan was critical to Normandy and, by extension, to the Temkins.

In addition, Normandy had negotiated a resale of the project which would have given it a profit of approximately $1,500,000, but the resale apparently was dependent upon the closing of the permanent loan.   Although Eddy and the attorney-defendants were apprised of all these facts, they refused to remove the lis pendens voluntarily.

Normandy sought to expunge the lis pendens pursuant to section 409.1,⁶ but its motion was denied by the trial court.   Subsequently, upon posting a bond as required by section 409.2,⁷ Normandy succeeded in having the lis pendens expunged.   The lien was removed and the permanent loan secured.

However, because of the delay involved, Normandy was unable to consummate the loan conversion or accept the resale offer before the January 31, 1982, deadline for redeeming its interest from the Sunset limited partners.   Thus, it lost its entire interest in the project.

Through appellate review, Normandy ultimately was able to have its bond exonerated.   Its petition for a writ of mandate was initially denied in the appellate court.   Upon review by the Supreme Court, Normandy was able to establish that the lis pendens should not have been recorded, because Eddy's charging order claim against Nemour's limited-partnership interest affected only a right in personalty, not real property.⁸  The Supreme Court remanded to the appellate court with directions, which then exonerated the bond.

On September 29, 1983, Normandy and the Temkins filed their complaint for damages against Eddy and the attorney-defendants for malicious prosecution, slander of title, abuse of process, and conspiracy to interfere with economic advantage.   The attorney-defendants filed a general denial on December 21, 1984;  and Eddy demurred on February 22, 1985, claiming Normandy and the Temkins had failed to set forth facts sufficient to constitute a cause of action.   The trial court sustained the demurrers in a minute order dated April 2, 1985.

The first amended complaint filed on May 3, 1985, met with a similar fate.   This time, the attorney-defendants joined Eddy in demurring.   Because the trial court found all causes of action to be defective, it sustained the demurrers without leave to amend and dismissed the action on September 19, 1985.   This appeal follows.

CONTENTIONS

Normandy and the Temkins maintain:  (1) the trial court committed reversible error in sustaining the demurrers without leave to amend;  (2) the recordation of a lis pendens in connection with a charging order is not a privileged act under Civil Code section 47; ⁹  (3) their first amended complaint sufficiently pled a cause of action for malicious prosecution;  (4) they possessed sufficient standing to support causes of action for slander of title and for abuse of process;  and (5) they adequately pled a conspiracy to interfere with economic advantage.   Further, they cite a 6th error, averring the facts may “also support a cause of action for bad faith recording of a Lis Pendens, under the Seaman's doctrine.” ¹⁰  (Italics added.)

DISCUSSION

1. Scope of appellate review.

The function of a demurrer is to test the sufficiency of a pleading by raising questions of law.  (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702, 141 Cal.Rptr. 189.)  “[A] general demurrer admits the truth of all material factual allegations in the complaint.”  (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.)   When a demurrer to a complaint is sustained without leave to amend, the complaint must be liberally construed and survives a general demurrer if it states, however, inartfully, facts disclosing some right of relief.   (Longshore v. County of Ventura (1979) 25 Cal.3d 14, 22, 157 Cal.Rptr. 706, 598 P.2d 866.)

 Leave to amend is properly denied when the facts are not in dispute and the nature of the claim is clear, but there is no liability under substantive law.  (Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 306, 191 Cal.Rptr. 704.)   Although it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment, the burden is on the plaintiff to demonstrate that the trial court abused its discretion and to show how the amendment will change the legal effect of the pleading.  (Keyes v. Santa Clara Valley Water Dist. (1982) 128 Cal.App.3d 882, 885, 180 Cal.Rptr. 586, citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737.)

The trial court in the instant case found that Normandy and the Temkins failed to state facts sufficient to constitute any of the causes of action claimed.   Because they have failed to show on appeal how their pleading might be perfected, the trial court has not abused its discretion in sustaining the demurrers without leave to amend.

2. The trial court's findings.

In its minute order dated September 19, 1985, the trial court gave its reasons for sustaining, without leave to amend, the demurrer to each cause of action alleged as follows:  As to malicious prosecution, the defense of probable cause was apparent on the face of the complaint, and, the lis pendens created no new claim and was not part of the judicial process;  as to slander of title, no cause of action was stated because Normandy and the Temkins alleged they did not hold title to the property;  as to the abuse of process, recording of lis pendens is not process;  as to conspiracy to interfere with economic advantage, this was based on the other causes of action, all of which were defective.

3. The recording of a lis pendens is privileged.

 As noted ante, the notice of lis pendens was found on appeal to have been improperly recorded against the project, inasmuch as Nemour's limited partnership interest in Normandy was personal, rather than real, property.   The assets owned by a partnership “are not available to satisfy a judgment against the limited partner in his individual capacity.”  (Evans v. Galardi (1976) 16 Cal.3d 300, 307, 128 Cal.Rptr. 25, 546 P.2d 313, italics added.)   Further, “individual limited partners do not have an interest in the partnership's real property, neither title to the property nor a right of possession, that can support the filing of a lis pendens.”  (North Coast Business Park v. Superior Court (1984) 158 Cal.App.3d 858, 860, 205 Cal.Rptr. 81.)   Nevertheless, it does not necessarily follow that Eddy's improper recordation of the lis pendens may serve as the basis of a cause of action for damages.

Upon the filing of a complaint involving real property, a plaintiff may, pursuant to section 409, give notice of the pendency of the action via a lis pendens.   Thus, “the recordation of a notice of lis pendens is in effect a republication of the pleadings [in an action].”  (Albertson v. Raboff (1956) 46 Cal.2d 375, 379, 295 P.2d 405.)   As such, a lis pendens is purely incidental to the underlying action and has no existence apart from it.   (Ibid.)

Under section 47, subdivision 2 (see footnote 9), a publication or broadcast made in any judicial proceeding is privileged.   Further, it is well settled that the privilege so granted is absolute and unaffected “by the presence of malice.”  (Ascherman v. Natanson (1972) 23 Cal.App.3d 861, 864–865, 100 Cal.Rptr. 656;  Chen v. Fleming (1983) 147 Cal.App.3d 36, 39, 194 Cal.Rptr. 913;  Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 667, 211 Cal.Rptr. 847.)

The obvious purpose of this provision, which enables litigants to secure and defend their rights without fear of being harassed by defamation actions, is to ensure freedom of access to our courts and “to promote the unfettered administration of justice․”  (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 823, 106 Cal.Rptr. 718.)  “It would be anomalous to hold that a litigant is privileged to make a publication necessary to bring an action but that he can be sued for defamation if he lets anyone know that he has brought it [citation], particularly when he is expressly authorized by statute to let all the world know that he has brought it.”  (Albertson v. Raboff, supra, 46 Cal.2d at p. 380, 295 P.2d 405.)

Albertson involved an action for disparagement of title arising from the defendant's recordation of a lis pendens.   It was alleged the defendant knew at the time of filing the complaint in a prior action that he had no right to a lien or an interest in the real property upon which the lis pendens was recorded.  (Id., at p. 378, 295 P.2d 405.)   Nevertheless, the court held the plaintiff did not have a cause of action for disparagement of title, because the publication of pleadings is “unquestionably clothed with absolute privilege, and ․ the republication thereof by recording a notice of lis pendens is similarly privileged.”  (Id., at p. 379, 295 P.2d 405.)

In the present case, the notice of lis pendens was a republication of the pleadings contained in Eddy's petition for a charging order, a judicial proceeding.   As such, even if arguendo it was recorded with malice, it is still entitled to absolute privilage.

However, Normandy and the Temkins, citing Lebbos, urge that a court interpreting the issue of privilege must first determine whether conditions supporting the finding of absolute privilege do in fact exist.   According to Lebbos, “[a]bsolute immunity provided by Civil Code section 47, subdivision 2, attaches if the following conditions are satisfied:  the publication, (1) was made in an official proceeding;  (2) had some connection or logical relation to the action;  (3) was made to achieve the objectives of the proceeding;  and (4) involved litigants or other participants authorized by law.  (Chen v. Fleming, supra, 147 Cal.App.3d at p. 41 [194 Cal.Rptr. 913].)”  (Lebbos v. State Bar, supra, 165 Cal.App.3d at p. 668, 211 Cal.Rptr. 847.)

Although Lebbos is a 1985 decision, these are not, as Normandy and the Temkins imply, new requirements.   The Lebbos court itself acknowledged an earlier source via the Chen citation quoted above.   Also, Woodcourt II Limited v. McDonald Co. (1981) 119 Cal.App.3d 245, 173 Cal.Rptr. 836, which dealt with the question of privilege as it applies to lis pendens, indicated at page 251, footnote 3, that the court in Bradley v. Hartford Acc. & Indem. Co., supra, 30 Cal.App.3d at page 825, 106 Cal.Rptr. 718, had set forth the same four conditions.

In Woodcourt II, as here, the appellants argued the court must determine if a notice of lis pendens met those conditions, and the court stated, “[t]his has already been done for us by the California Supreme Court in Albertson v. Raboff, supra, 46 Cal.2d 375 [295 P.2d 405] which concluded that by its very nature lis pendens meets all of those requirements, and recordation of lis pendens is absolutely privileged even if made with actual malice.”   (Woodcourt II Limited v. McDonald Co., supra, 119 Cal.App.3d at p. 251, 173 Cal.Rptr. 836.)

The determination has thus been made for this court as well.   The Albertson decision is controlling, and applies to Eddy's filing of the notice of lis pendens in the case at bench.

4. No cause of action for slander of title.

a. Privilege prevails.

In extending absolute privilege beyond the realm of pure defamation, the Albertson court specifically held the recordation of notices of lis pendens may not give rise to a cause of action for disparagement, or slander, of title.  (Albertson v. Raboff, supra, 46 Cal.2d at pp. 378–380, 295 P.2d 405;  see also Earp v. Nobmann (1981) 122 Cal.App.3d 270, 282, 175 Cal.Rptr. 767.)   That holding by itself would be controlling here.   However, as the trial court found, lack of standing also precludes a slander-of-title cause of action.

b. No standing.

 Normandy and the Temkins alleged in their first amended complaint that Sunset was “the record owner” of the project.   In order to state a cause of action for slander of title, they would have had to allege that they held title to the property in question.   This they were never in a position to do.

In fact, they alleged to the contrary, that Eddy and the attorney-defendants' “keeping the lien of their ‘lis pendens' on the PROPERTY of Sunset while seeking moneys against NEMOUR constituted a slander of title upon the PROPERTY of Sunset․”  (Italics added.)   Normandy and the Temkins' allusions to “derivative rights” in the project were insufficient to constitute standing in a cause of action for slander of title.

In Broadway Fed., etc., Loan Assoc. v. Howard (1955) 133 Cal.App.2d 382, 399–400, 285 P.2d 61, a demurrer to a claim for slander of title was sustained where the appellant's wife was alleged to be the owner of the property in question.   The court noted the “pleading not only fails to allege the invasion of any legally protected interest in appellant, but inferentially even negatives such an implication.”  (Id., at p. 401, 285 P.2d 61.)

Because the same holds true for the slander-of-title pleading in the instant case, we find the trial court properly sustained the demurrer for failure to state that cause of action.

5. There was no abuse of process.

 The recordation of a notice of lis pendens does not constitute “process” for the purpose of an action for abuse of process.   (Woodcourt II Limited v. McDonald Co., supra, 119 Cal.App.3d at pp. 251–252, 173 Cal.Rptr. 836.)  “ ‘The lis pendens is merely a notice required by statute to protect the interests of any subsequent purchasers.   It is filed without intervention of the judicial authority and brings neither the property nor any parties before the court.   Since there is no process, there can be no abuse of process.’ ”  (Id., at p. 252, 173 Cal.Rptr. 836, quoting Bonnie Braes Farms, Inc. v. Robinson (Ky.App.1980) 598 S.W.2d 765–766.)

In light of Woodcourt II 's holding, the trial court properly found a failure to state a cause of action for abuse of process.

6. No cause of action for conspiracy to interfere with economic advantage.

“Although application of the privilege accorded by Civil Code section 47 usually arises in the context of a defamation action, it has also been applied to other allegedly tortious conduct such as ․, intentional interference with prospective business advantage.”  (Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 841–842, 184 Cal.Rptr. 317.)

In Brody v. Montalbano (1978) 87 Cal.App.3d 725, 729–730, 151 Cal.Rptr. 206, a junior high school vice principal instituted an action for, inter alia, conspiracy to interfere with prospective advantage against parents who had written a letter of complaint against him to the board of education.   The court held the vice principal was precluded from utilizing the parents' conduct as the basis of an action for interference with prospective advantage (id., at p. 738, 151 Cal.Rptr. 206), because it was privileged under section 47.   (Id., at p. 732, 151 Cal.Rptr. 206.)   In essence, “California permits no cause of action based upon the defamatory nature of a communication which is itself privileged under the defamation laws.”  (Id., at pp. 738–739, 151 Cal.Rptr. 206, italics added.)

Here, Normandy and the Temkins claimed conspiracy to interfere with economic advantage.   According to Pettitt v. Levy (1972) 28 Cal.App.3d 484, 491, 104 Cal.Rptr. 650, however, “the allegation of conspiracy adds nothing and does not vitiate ․ privilege.”   In Pettitt, the defendants had prepared and submitted a false or forged building permit to the City of Fresno.   The court expressed its disapproval of the defendants' actions but found them to be privileged, commenting, “we are satisfied that the purpose and philosophy of the privilege compels this result and that any narrowing of the privilege to redress this grievance would produce mischiefs far worse.  (Pico v. Cohn (1891) 91 Cal. 129, 134 [25 P. 970, 27 P. 537].)”  (Id., at p. 492, 104 Cal.Rptr. 650;  see also Ribas v. Clark (1985) 38 Cal.3d 355, 364–365, 212 Cal.Rptr. 143, 696 P.2d 637;  Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642–643.)

The privilege accorded a notice of lis pendens likewise compels the finding in this case that no cause of action can be stated for conspiracy to interfere with economic advantage.

7. No cause of action for malicious prosecution.

 As discussed ante, the privilege contained in section 47, though directed at potential defamation actions, precludes other actions as well.   The sole exception to this immunity is an action for malicious prosecution (Pettitt v. Levy, supra, 28 Cal.App.3d at p. 489, 104 Cal.Rptr. 650), even though that tort is not one favored by the law (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 53, 118 Cal.Rptr. 184, 529 P.2d 608;  Cowles v. Carter (1981) 115 Cal.App.3d 350, 355, 171 Cal.Rptr. 269).   The malicious commencement of a civil proceeding is actionable not only because it harms the individual against whom the claim is made, but also because it threatens the efficient administration of justice.  (Bertero v. National General Corp., supra, 13 Cal.3d at p. 50, 118 Cal.Rptr. 184, 529 P.2d 608.)

“In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action including reasonable attorney's fees [citations], compensation for injury to his reputation or impairment of his social and business standing in the community [citations], and for mental or emotional distress [citation].  [Fn. omitted.]”  (Id., at p. 51, 118 Cal.Rptr. 184, 529 P.2d 608;  see also Cowles v. Carter, supra, 115 Cal.App.3d at p. 354, 171 Cal.Rptr. 269.)

“The elements of a cause of action for malicious prosecution are (1) the institution of an action (2) without probable cause and (3) with malice, (4) termination of the maliciously-brought action in favor of the defendant, and (5) damages resulting from the bringing of the suit.”  (Sierra Club v. Superior Court (1985) 168 Cal.App.3d 1138, 1144, 214 Cal.Rptr. 740;  accord Bertero v. National General Corp., supra, 13 Cal.3d at p. 50, 118 Cal.Rptr. 184, 529 P.2d 608.)

“[T]he fact that a communication may be absolutely privileged for the purposes of a defamation action does not prevent its being an element of an action for malicious prosecution in a proper case.   The policy of encouraging free access to the courts that underlies the absolute privilege applicable in defamation actions is outweighed by the policy of affording redress for individual wrongs when the requirements of favorable termination, lack of probable cause, and malice are satisfied.”  (Albertson v. Raboff, supra, 46 Cal.2d at p. 382, 295 P.2d 405, italics added;  see also Cowles v. Carter, supra, 115 Cal.App.3d at p. 354, 171 Cal.Rptr. 269.)

 Thus, it is clear the wrongful recordation of a notice of lis pendens might, under certain circumstances, provide the basis for a malicious prosecution action.¹¹  This, however, is not the “proper case” envisioned by Albertson.

a. No favorable termination.

 “Favorable termination is a necessary element because the very essence of a malicious prosecution action is the bringing of an unwarranted or unjustifiable action against the defendant [in the prior action].”  (Sierra Club v. Superior Court, supra, 168 Cal.App.3d at p. 1144, 214 Cal.Rptr. 740, italics added.)

In the instant case, Normandy and the Temkins' claim of favorable termination is predicated upon the fact that Normandy ultimately succeeded on appeal in exonerating the bond posted to expunge the lis pendens.   However, as noted ante, a lis pendens is entirely incidental to the underlying action and has no existence apart from it.  (Albertson v. Raboff, supra, 46 Cal.2d at p. 379, 295 P.2d 405.)

An analogous situation may be found in Twyford v. Twyford (1976) 63 Cal.App.3d 916, 920–922, 134 Cal.Rptr. 145, where an allegedly damaging request for admissions filed in a prior divorce case was found not to be a separate proceeding.   The court held the request for admissions had no independent existence and therefore would “not support a malicious prosecution complaint.”  (Id., at p. 922, 134 Cal.Rptr. 145.)

The underlying action here is the charging order against Nemour's interest in Normandy, of which the recordation of the lis pendens served simply to give notice.   Because the charging order was upheld on appeal in Eddy v. Temkin, supra, 167 Cal.App.3d at page 1122, 213 Cal.Rptr. 597, there was no favorable termination for Normandy and the Temkins.

b. Probable cause was not lacking.

Even if arguendo the exoneration of the lis pendens bond were somehow construed as a favorable termination, a cause of action for malicious prosecution would still not exist.   Although the notice of lis pendens was later found to be improper, Eddy had probable cause to record it.

“ ‘Probable cause’ for the institution of an action does not mean ‘legal cause’ therefor, because, if it did, every plaintiff who failed to recover in his lawsuit would be liable to an action for malicious prosecution.  ‘Probable cause’ has sometimes been defined as ‘reasonable cause’;  and ․ has been further defined to be an honest suspicion or belief on the part of the instigator thereof, founded upon facts sufficiently strong to warrant the average person in believing the charge to be true.   The existence of probable cause is a question of law for the court, ․”  (Murdock v. Gerth (1944) 65 Cal.App.2d 170, 178–179, 150 P.2d 489;  accord Cowles v. Carter, supra, 115 Cal.App.3d at p. 355, 171 Cal.Rptr. 269.)

It is argued in respondents' brief that the first amended complaint, on its face, “pleads for Eddy a complete defense [to malicious prosecution] since it makes out a prima facie defense of advice of counsel and in fact alleges that the challenged conduct [i.e., the recording of the lis pendens] was done by counsel.”

According to Murdock, probable cause for the institution of an action may be established if the following is proven:  “That [a] plaintiff acted ․ upon the opinion and advice of counsel to the effect that he had a good cause of action after laying all of the facts of the case, in good faith, before said counsel․  However erroneous, from a legal standpoint, such advice might subsequently prove to be, its solicitation, based upon an honest statement of the facts, would be a complete defense for the attorney's client in a malicious prosecution action.”  (Murdock v. Gerth, supra, 65 Cal.App.2d at p. 180, 150 P.2d 489.)

That Eddy in good faith set forth all pertinent facts before counsel and acted upon counsel's advice in recording the notice of lis pendens, though assumed, has not been proven here.   The record does not contain evidence of the consultations Eddy had with the attorney-defendants as to the appropriateness of a lis pendens, and the substance of those consultations would be subject to the attorney-client privilege.

However, probable cause may also be established by means other than the defense of acting upon advice of counsel.  “In the event the plaintiff in the prior action obtains judgment after trial, such judgment is, unless procured by fraud, conclusive proof that the proceedings were prosecuted with probable cause, notwithstanding the fact that the judgment is reversed on appeal.”   (Cowles v. Carter, supra, 115 Cal.App.3d at p. 355, 171 Cal.Rptr. 269.)

Thus, “[t]he requirement of favorable termination of the prior proceeding and the requirement that the claimant show lack of probable cause are closely related.”  (Ibid.)  Because the lis pendens has no existence apart from the charging order, Normandy and the Temkins cannot show favorable termination of the prior action.

Even if it were possible to view the lis pendens as a proceeding unto itself, Eddy's securing a “judgment” in his favor as to that “proceeding” provides conclusive proof of probable cause under Cowles.   When a trial court refused to expunge the lis pendens pursuant to section 409.1 (see footnote 6) and Normandy was required to post a bond in order to expunge (see footnote 7), Eddy obtained the equivalent of a judgment.   An appellate court later affirmed that “judgment” when it denied a writ of mandate to have the bond exonerated.

Eddy can be considered to have obtained a “judgment” establishing probable cause, notwithstanding the fact the appellate court later exonerated the bond on remand from the Supreme Court.  (See Cowles v. Carter, supra, at p. 355, 171 Cal.Rptr. 269.)   Further, there is no evidence in the record the “judgment” was “procured by fraud,” which would have nullified the probable cause so established.  (Ibid.)

c. Malice cannot be shown.

 Assuming, again arguendo, that lis pendens could conceivably be considered an independent action, no showing of malice is possible here.  “The malice required in an action for malicious prosecution is not limited to actual hostility or ill will toward plaintiff but exists when the proceedings are instituted primarily for an improper purpose.”  (Albertson v. Raboff, supra, 46 Cal.2d at p. 383, 295 P.2d 405.)   Generally, improper purpose exists when the person initiating the action does not believe the claim may be held valid, or where the proceedings are begun primarily because of hostility or ill will, or solely for the purpose of depriving the defendant of a beneficial use of his property, or for the purpose of forcing a settlement which has no relation to the merits of the action.  (Ibid.)

Granted, section 409, which “permit[s] a plaintiff in an action effecting the title or right of possession of real property to file a notice of lis pendens, is limited in its application to cases affecting real property.”   (Ross v. Title Guarantee, etc., Co. (1934) 136 Cal.App. 393, 400, 29 P.2d 236.)   In Ross, the lis pendens was found to be improper because it was based upon a promissory note, which is personal property.  (Ibid.)

Under the circumstances of this particular case, however, it appears reasonable minds could have differed as to the propriety of the lis pendens.   It is true the lis pendens was based upon the charging order, which affected Nemour's interest in Normandy, also personal property.

That a charging order is the appropriate remedy for a judgment creditor to use in reaching a partnership interest “is a correct statement of the law as applied to the ordinary case, ․  But, if ․ there was a transfer of partnership assets to one or more of the remaining partners, or to a third party, without a fair and adequate consideration or for the purpose of defrauding creditors of the partnership or of individual partners, then we do not have the ordinary and usual situation which [provisions of the] Corporations Code, ․ [see footnote 3], are designed to protect.”  (Taylor v. S & M Lamp Co. (1961) 190 Cal.App.2d 700, 710–711, 12 Cal.Rptr. 323;  see also 48 Cal.Jur.3d Partnership, § 174, p. 714.)  “To apply the general rule as a shield to such a situation is contrary to reason and would violate public policy.”  (Taylor v. S & M Lamp Co., at p. 711, 12 Cal.Rptr. 323.)

Eddy v. Temkin, supra, 167 Cal.App.3d at page 1122, 213 Cal.Rptr. 597, of which we have taken judicial notice, has now established Nemour's purported transfer of his interest in Normandy to another partner, William, Jr., was without adequate consideration.   Further, that court held the transfer was an attempt to defraud creditors.  (Id., at p. 1121, 213 Cal.Rptr. 597.)

Taylor v. S & M Lamp Co., supra, 190 Cal.App.2d at page 710, 12 Cal.Rptr. 323, involved a sheriff's sale rather than a lis pendens to enforce a charging order, and the case is therefore not directly on point.   Nevertheless, its language, including the passage quoted above, suggests Taylor could reasonably be construed as having a more general application.   A belief that recordation of the lis pendens on Eddy's behalf might be held valid was thus justified;  and because it was, the malice required for a malicious prosecution action against Eddy is absent.  (See Albertson v. Raboff, supra, 46 Cal.2d at p. 383, 295 P.2d 405.)

Moreover, malice is lacking for such an action against the attorney-defendants as well.  “If the issue which the attorney is called upon to decide is fairly debatable, then under his oath of office, he is not only authorized but obligated to present and urge his client's claim upon the court.   And if it subsequently is determined that the position honestly taken by the attorney was erroneous he should be relieved from responsibility [for malicious prosecution].”  (Murdock v. Gerth, supra, 65 Cal.App.2d at p. 179, 150 P.2d 489.)

 Because none of the elements of malicious prosecution can be satisfied in the instant case, such a cause of action cannot be stated here.

CONCLUSION

Neither the first amended complaint filed by Normandy and the Temkins nor their brief on appeal “even suggest that facts more helpful to [them] exist.   The trial court therefore operated within the bounds of its discretion when it sustained the demurrer[s] without leave to amend.  [Fn. omitted.]”  (Saliter v. Pierce Brothers Mortuaries (1978) 81 Cal.App.3d 292, 300–301, 146 Cal.Rptr. 271.)

DISPOSITION

Accordingly, the judgment is affirmed.

FOOTNOTES

1.   In the response to the demurrers to their first amended complaint, Normandy and the Temkins withdrew their claim of abuse of process, but they now request reinstatement of this cause of action on appeal.

2.   The factual rendition is developed from the clerk's transcript, the pleadings, and the facts set forth in a related case, Eddy v. Temkin (1985) 167 Cal.App.3d 1115, 213 Cal.Rptr. 597, of which we hereby take judicial notice.

3.   Corporations Code section 15028 provides in pertinent part as follows:  “(1) On due application to a competent court by any judgment creditor of a partner, the court which entered the judgment, order, or decree, or any other court, may charge the interest of the debtor partner with payment of the unsatisfied amount of such judgment debt with interest thereon;  and may then or later appoint a receiver of his share of the profits, and of any other money due or to fall due to him in respect of the partnership, and make all other orders, directions, accounts, and inquiries which the debtor partner might have made, or which the circumstances of the case may require.  [¶]  (2) The interest charged may be redeemed at any time before foreclosure, or in case of a sale being directed by the court may be purchased without thereby causing a dissolution:  [¶] (a) With separate property, by any one or more of the partners, or [¶] (b) With partnership property, by any one or more of the partners with the consent of all the partners whose interests are not so charged or sold.”

4.   Eddy v. Temkin, supra, 167 Cal.App.3d 1115, 213 Cal.Rptr. 597, dealt with the subsequent appeal of this order by Normandy and William H. Temkin, Jr., who supposedly had bought out Nemour.   The appellate court, in affirming the charging order on April 23, 1985, held that the record supported the trial court's findings and noted that Nemour had “continued as an authorized signatory on the partnership bank account after his purported withdrawal” from Normandy.  (Id., at p. 1122, 213 Cal.Rptr. 597.)

5.   Code of Civil Procedure section 409 provides in relevant part:  “In an action concerning real property or affecting the title or the right of possession of real property, the plaintiff, at the time of filing the complaint, ․, may record in the office of the recorder of the county in which the property is situated, a notice of the pendency of the action, containing the names of the parties, and the object of the action ․, and a description of the property in that county affected thereby.”All subsequent code section references are to the Code of Civil Procedure, unless otherwise indicated.

6.   Section 409.1 states in pertinent part as follows:  “At any time after notice of pendency of an action has been recorded pursuant to Section 409 or other law, the court in which the action is pending shall, upon motion of a party to the action supported by affidavit, order that the notice be expunged, unless the party filing the notice shows to the satisfaction of the court, by a preponderance of the evidence, that:  [¶] (a) The action does affect title to or right of possession of the real property described in the notice;  and [¶] (b) Insofar as the action affects title to or right of possession of the real property described in the notice, the party recording the notice has commenced or prosecuted the action for a proper purpose and in good faith.”

7.   Section 409.2 provides in pertinent part that “the court in which the action is pending may order that the notice be expunged if the moving party shall have given an undertaking ․ to the effect that the moving party will indemnify the party recording the notice for all damages which he may incur if the notice is expunged and the moving party does not prevail․”

8.   Corporations Code section 15518 states:  “A limited partner's interest in the partnership is personal property.”

9.   Civil Code section 47, hereinafter referred to as section 47, states in relevant part:  “A privileged publication or broadcast is one made—[¶]․ [¶] [i]n any ․ judicial proceeding, ․”

10.   According to the record, the possibility that such a cause of action might exist was not raised before the trial court.   On appeal, Normandy and the Temkins' opening brief merely raises the following question, without further elaboration:  “Is the remedy a ‘bad faith’ action similar to one of the two causes of action created by Seaman's Direct Buying Service, Inc [.] v. Standard Oil [Co.] (1984) 36 C[al.]3d 752, [206 Cal.Rptr. 354, 686 P.2d 1158], ․?”  Seaman's dealt with a breach of contract action and is noteworthy primarily because of its holding that “a party to a contract may incur tort remedies when, in addition to breaching the contract, it seeks to shield itself from liability by denying, in bad faith and without probable cause, that the contract exists.”  (Seaman's Direct Buying Service, Inc. v. Standard Oil Co. (1984) 36 Cal.3d 752, 769, 206 Cal.Rptr. 354, 686 P.2d 1158.)   Normandy and the Temkins' opening and reply briefs fail to show how a Seaman's cause of action might be fashioned from the facts in the instant case.

11.   However, no reported decision has upheld an award of damages for malicious prosecution for the recordation of a notice of lis pendens.   (Cal. Lis Pendens Practice (Cont.Ed.Bar 1983) § 2.3, p. 26.)

KLEIN, Presiding Justice.

DANIELSON and HOM *, JJ., concur.