CACI No. 1730. Slander of Title - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2020 edition)

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1730.Slander of Title - Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] harmed
[him/her/nonbinary pronoun] 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
record]];
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
property;
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]/ [or] by incurring legal expenses necessary
to remove the doubt cast by the [statement/e.g., deed] and to clear
title];
7. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New December 2012; Revised May 2018, November 2018
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.
An additional element of a slander of title claim is that the alleged slanderous
statement was without privilege or justification. (Schep v. Capital One, N.A. (2017)
12 Cal.App.5th 1331, 1336 [220 Cal.Rptr.3d 408].) If this element presents an issue
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for the jury, an instruction on it must be given.
Under the common-interest privilege of Civil Code section 47(c), the defendant
bears the initial burden of showing facts to bring the communication within the
privilege. The plaintiff then must prove 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].) If the common-interest privilege is at issue, give CACI No. 1723, Common
Interest Privilege - Malice. The elements of CACI No. 1723 constitute the
“unprivileged” element of this basic claim.
If the privilege of Civil Code section 47(d) for a privileged publication or broadcast
is alleged, give CACI No. 1724, Fair and True Reporting Privilege. (See J-M
Manufacturing Co., Inc. v. Phillips & Cohen LLP (2016) 247 Cal.App.4th 87 [201
Cal.Rptr.3d 782].) If some other privilege is at issue, an additional element or
instruction targeting that privilege will be required.
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 v. Raboff (1956) 46 Cal.2d 375, 381 [295 P.2d 405]) 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
• “[S]lander of title is not a form of deceit. It is a form of the separate common
law tort of disparagement, also sometimes referred to as injurious falsehood.”
(Finch Aerospace Corp. v. City of San Diego (2017) 8 Cal.App.5th 1248, 1253
[214 Cal.Rptr.3d 628].)
• “The Supreme Court has recently determined a viable disparagement claim,
which necessarily includes a slander of title claim, requires the existence of a
‘misleading statement that (1) specifically refers to the plaintiff’s product or
business and (2) clearly derogates that product or business. Each requirement
must be satisfied by express mention or by clear implication.’ ” (Finch
Aerospace Corp., supra, 8 Cal.App.5th at p. 1253.)
• “ ‘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
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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.)
• “In an action for wrongful disparagement of title, a plaintiff may recover (1) the
expense of legal proceedings necessary to remove the doubt cast by the
disparagement, (2) financial loss resulting from the impairment of vendibility of
the property, and (3) general damages for the time and inconvenience suffered by
plaintiff in removing the doubt cast upon his property.” (Klem v. Access Ins. Co.
(2017) 17 Cal.App.5th 595, 624 [225 Cal.Rptr.3d 711].)
• “While it is true that an essential element of a cause of action for slander of title
is that the plaintiff suffered pecuniary damage as a result of the disparagement of
title, the law is equally clear that the expense of legal proceedings necessary to
remove the doubt cast by the disparagement and to clear title is a recognized
form of pecuniary damage in such cases.” (Sumner Hill Homeowners’ Assn., Inc.
v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1032 [141 Cal.Rptr.3d
109], internal citations omitted; see Rest.2d Torts, § 633, subd. (1)(b).)
• “Although attorney fees and litigation expenses reasonably necessary to remove
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the memorandum from the record were recoverable, those incurred merely in
pursuit of damages against . . . defendants were not.” (Seeley v. Seymour (1987)
190 Cal.App.3d 844, 865-866 [237 Cal.Rptr. 282].)
• “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
omitted.)
• “[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.)
• “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
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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
9 Witkin, Summary of California Law (11th ed. 2017) Torts §§ 747, 1886
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)
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