California Civil Jury Instructions (CACI) (2017)

1730. Slander of Title—Essential Factual Elements

Download PDF
1730.Slander of Title—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] harmed [him/her] by
[making a statement/taking an action] that cast doubts about [name of
plaintiff]’s ownership of [describe real or personal property, e.g., the
residence located at [address]]. To establish this claim, [name of plaintiff]
must prove all of the following:
1. That [name of defendant] [made a statement/[specify other act,
e.g., recorded a deed] that cast doubts about [name of plaintiff]’s
ownership of the property;
2. That the [statement was made to a person other than [name of
plaintiff]/[specify other publication, e.g., deed became a public
3. That [the statement was untrue and] [name of plaintiff] did in
fact own the property;
4. That [name of defendant] [knew that/acted with reckless disregard
of the truth or falsity as to whether] [name of plaintiff] owned the
5. That [name of defendant] knew or should have recognized that
someone else might act in reliance on the [statement/e.g., deed],
causing [name of plaintiff] financial loss;
6. That [name of plaintiff] did in fact suffer immediate and direct
financial harm because someone else acted in reliance on the
[statement/e.g., deed];
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2012
Directions for Use
Slander of title may be either by words or an act that clouds title to the property.
(See, e.g., Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011)
200 Cal.App.4th 656, 661 [132 Cal.Rptr.3d 781] [filing of lis pendens].) If the
slander is by means other than words, specify the means in element 1. If the
slander is by words, select the first option in element 2.
The privileges of Civil Code section 47 apply to actions for slander of title.
(Albertson v. Raboff (1956) 46 Cal.2d 375, 378–379 [295 P.2d 405].) The defendant
has the burden of proving privilege as an affirmative defense. (See Smith v.
Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630–631 [223
Cal.Rptr. 339].) If privilege is claimed, additional instructions will be necessary to
state the affirmative defense and frame the privilege.
The privilege of Civil Code section 47(c), applicable to communications between
“interested” persons (see CACI No. 1723, Qualified Privilege), requires an absence
of malice. To defeat this privilege, the plaintiff must show malice defined as a state
of mind arising from hatred or ill will, evidencing a willingness to vex, annoy, or
injure another person. (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 723
[257 Cal.Rptr. 708, 771 P.2d 406].) While defendant has the burden of proving that
an allegedly defamatory statement falls within the scope of the common-interest
privilege, plaintiffs have the burden of proving that the statement was made with
malice. (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1203 [31 Cal.Rptr.2d 776, 875
P.2d 1279].) Give CACI No. 1723 if the defendant presents evidence to put the
privilege of Civil Code section 47(c) at issue.
Beyond the privilege of Civil Code section 47(c), it would appear that actual
malice in the sense of ill will toward and intent to harm the plaintiff is not required
and that malice may be implied in law from absence of privilege (see Gudger v.
Manton (1943) 21 Cal.2d 537, 543–544 [134 P.2d 217], disapproved on other
grounds in Albertson, supra, 46 Cal.2d at p. 381.) or from the attempt to secure
property to which the defendant had no legitimate claim (see Spencer v. Harmon
Enterprises, Inc. (1965) 234 Cal.App.2d 614, 623 [44 Cal.Rptr. 683].) or from
accusations made without foundation (element 4) (See Contra Costa County Title
Co. v. Waloff (1960) 184 Cal.App.2d 59, 67 [7 Cal.Rptr. 358].)
Sources and Authority
• “The elements of a cause of action for slander of title are ‘(1) a publication, (2)
which is without privilege or justification, (3) which is false, and (4) which
causes direct and immediate pecuniary loss.’ (Alpha & Omega Development, LP,
supra, 200 Cal.App.4th at p. 664, original italics, internal citations omitted.)
• “ ‘Slander of title is effected by one who without privilege publishes untrue and
disparaging statements with respect to the property of another under such
circumstances as would lead a reasonable person to foresee that a prospective
purchaser or lessee thereof might abandon his intentions. It is an invasion of the
interest in the vendibility of property. In order to commit the tort actual malice
or ill will is unnecessary. Damages usually consist of loss of a prospective
purchaser. To be disparaging a statement need not be a complete denial of title
in others, but may be any unfounded claim of an interest in the property which
throws doubt upon its ownership.’ ‘However, it is not necessary to show that a
particular pending deal was hampered or prevented, since recovery may be had
for the depreciation in the market value of the property.’ ” (M.F. Farming, Co.
v. Couch Distributing Co. (2012) 207 Cal.App.4th 180, 198–199 [143
Cal.Rptr.3d 160], internal citations omitted.)
• “Slander of title ‘occurs when a person, without a privilege to do so, publishes
a false statement that disparages title to property and causes pecuniary loss.
[Citation.]’ The false statement must be ‘ “maliciously made with the intent to
defame.” ’ ” (Cyr v. McGovran (2012) 206 Cal.App.4th 645, 651 [142
Cal.Rptr.3d 34], internal citations omitted.)
• “One who publishes a false statement harmful to the interests of another is
subject to liability for pecuniary loss resulting to the other if (a) he intends for
publication of the statement to result in harm to interests of the other having a
pecuniary value, or either recognizes or should recognize that it is likely to do
so, and (b) he knows that the statement is false or acts in reckless disregard of
its truth or falsity.” (Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214 [206
Cal.Rptr. 259], quoting Rest. 2d Torts § 623A.)
• “One who, without a privilege to do so, publishes matter which is untrue and
disparaging to another’s property in land, chattels or intangible things under
such circumstances as would lead a reasonable man to foresee that the conduct
of a third person as purchaser or lessee thereof might be determined thereby is
liable for pecuniary loss resulting to the other from the impairment of
vendibility thus caused.” (Chrysler Credit Corp. v. Ostly (1974) 42 Cal.App.3d
663, 674 [117 Cal.Rptr. 167], quoting Rest. Torts, § 624 [motor vehicle case].)
• “Sections 623A, 624 and 633 of the Restatement Second of Torts further refine
the definition so it is clear included elements of the tort are that there must be
(a) a publication, (b) which is without privilege or justification and thus with
malice, express or implied, and (c) is false, either knowingly so or made
without regard to its truthfulness, and (d) causes direct and immediate pecuniary
loss.” (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263–264 [169 Cal.Rptr.
678], footnote and internal citations omitted.)
• “Although the gravamen of an action for disparagement of title is different from
that of an action for personal defamation, substantially the same privileges are
recognized in relation to both torts in the absence of statute. Questions of
privilege relating to both torts are now resolved in the light of section 47 of the
Civil Code.” (Albertson, supra, 46 Cal.2d at pp. 378–379, internal citations
• “[The privilege of Civil Code section 47(c)] is lost, however, where the person
making the communication acts with malice. Malice exists where the person
making the statement acts out of hatred or ill will, or has no reasonable grounds
for believing the statement to be true, or makes the statement for any reason
other than to protect the interest for the protection of which the privilege is
given.” (Earp v. Nobmann (1981) 122 Cal.App.3d 270, 285 [175 Cal.Rptr. 767],
disapproved on other grounds in Silberg v. Anderson (1990) 50 Cal.3d 205, 219
[266 Cal.Rptr. 638, 786 P.2d 365].)
• “The existence of privilege is a defense to an action for defamation. Therefore,
the burden is on the defendant to plead and prove the challenged publication
was made under circumstances that conferred the privilege.” (Palmer v.
Zaklama (2003) 109 Cal.App.4th 1367, 1380 [1 Cal.Rptr.3d 116] [applying rule
to slander of title].)
• “The principal issue presented in this case is whether the trial court properly
instructed the jury that, in the jury’s determination whether the common-interest
privilege set forth in section 47(c) has been established, defendants bore the
burden of proving not only that the allegedly defamatory statement was made
upon an occasion that falls within the common-interest privilege, but also that
the statement was made without malice. Defendants contend that, in California
and throughout the United States, the general rule is that, although a defendant
bears the initial burden of establishing that the allegedly defamatory statement
was made upon an occasion falling within the purview of the common-interest
privilege, once it is established that the statement was made upon such a
privileged occasion, the plaintiff may recover damages for defamation only if
the plaintiff successfully meets the burden of proving that the statement was
made with malice. As stated above, the Court of Appeal agreed with defendants
on this point. Although, as we shall explain, there are a few (primarily early)
California decisions that state a contrary rule, both the legislative history of
section 47(c) and the overwhelming majority of recent California decisions
support the Court of Appeal’s conclusion. Accordingly, we agree with the Court
of Appeal insofar as it concluded that the trial court erred in instructing the jury
that defendants bore the burden of proof upon the issue of malice, for purposes
of section 47(c).” (Lundquist, supra, 7 Cal.4th at pp. 1202–1203, internal
citations omitted.)
• “ ‘The burden is also upon the defendant to prove any affirmative defense upon
which he relies, including . . . that the communication is privileged. But when
the pleadings admit . . . such facts, manifestly the defendant is thereby relieved
of this burden.’ ‘Normally, privilege is an affirmative defense which must be
pleaded in the answer [citation]. However, if the complaint discloses existence
of a qualified privilege, it must allege malice to state a cause of action
[citation].’ Finally, ‘Ordinarily privilege must be specially pleaded by the
defendant, and the burden of proving it is on him. [Citations.] But where the
complaint shows that the communication or publication is one within the classes
qualifiedly privileged, it is necessary for the plaintiff to go further and plead
and prove that the privilege is not available as a defense in the particular case,
e.g., because of malice.’ ” (Smith, supra, 177 Cal.App.3d at pp. 630–631,
internal citations omitted.)
• “Civil Code section 47(b)(4) clearly describes the conditions for application of
the [litigation] privilege to a recorded lis pendens as follows: ‘A recorded lis
pendens is not a privileged publication unless it identifies an action previously
filed with a court of competent jurisdiction which affects the title or right of
possession of real property, as authorized or required by law.’ Those conditions
are (1) the lis pendens must identify a previously filed action and (2) the
previously filed action must be one that affects title or right of possession of
real property. We decline to add a third requirement that there must also be
evidentiary merit.” (La Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461,
476 [149 Cal.Rptr.3d 716], internal citation omitted.)
• “[T]he property owner may recover for the impairment of the vendibility ‘of his
property’ without showing that the loss was caused by prevention of a particular
sale. ‘The most usual manner in which a third person’s reliance upon
disparaging matter causes pecuniary loss is by preventing a sale to a particular
purchaser. . . . The disparaging matter may, if widely disseminated, cause
pecuniary loss by depriving its possessor of a market in which, but for the
disparagement, his land or other thing might with reasonable certainty have
found a purchaser.’ ” (Glass v. Gulf Oil Corp. (1970) 12 Cal.App.3d 412, 424
[96 Cal.Rptr. 902].)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts § 642
6Witkin, Summary of California Law (10th ed. 2005) Torts § 1703
3 Levy et al., California Torts, Ch. 40, Fraud and Deceit and Other Business Torts,
§ 40.80 et seq. (Matthew Bender)
30 California Forms of Pleading and Practice, Ch. 340, Libel and Slander, § 340.90
(Matthew Bender)