Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. 03CC11184, Charles Margines, Judge. Affirmed in part; reversed with directions in part.
Snell and Wilmer and Richard A. Derevan for Defendants and Appellants.
Enterprise Counsel Group, David A. Robinson, Todd E. Lundell; and Jeffrey Lewis for Plaintiff and Appellant.
OPINION
SILLS, P. J.
I. OVERVIEW
Family law cases, as we said in In re Marriage of Schaffer (1999) 69 Cal.App.4th 801, 808, can sometimes “resemble an unruly desert caravan strung out upon the sands.” This case is an example.
A January 2001 divorce judgment provided for equalization payments. But before the divorce settlement was finalized or a judgment filed, the divorcing couple entered into a convoluted loan and lease-back arrangement, with the wife loaning a large amount of money ($450,000) to her property developer husband -- most of which came from the sale of the former community property family residence that the wife was getting in the divorce settlement. The husband took the money his soon-to-be ex-wife loaned him and bought a Corona del Mar house in his name for her to live in, with her making lease payments to him. In return, the wife received a promissory note, secured by a deed of trust, for the amount of money she had lent her soon-to-be ex-husband so he could buy the property. The husband had essentially borrowed the down payment from a community asset that his wife parted with prior to the judgment.
Obviously, this was not an arrangement structured to minimize contact between two ex-spouses.
Two years later, the wife claimed that money was owed on both the note and the equalization payment. So she contacted her erstwhile family law attorney.
A quick digression about the role of that particular family law attorney: In the fall of 2000, the wife had wanted to adopt a child in Russia, a process which, she understood, required her divorce to be final. So, in order to speed up the dissolution proceedings, the wife discharged her attorney and proceeded, in the next few months, to finish her divorce in pro per. The wife’s decision to go it alone was all the more remarkable given that hers was certainly a high asset divorce case. The ultimate divorce settlement, and concurrent loan lease-back deal, was a do-it-yourself affair from her point of view.
The wife’s lack of legal representation at the critical juncture of the final settlement partly explains the untidiness of subsequent events: No doubt her erstwhile counsel would have structured any deal with an eye to the possibility that one day his client might need to enforce it, and would have seen the substantive relationship between the loan and acquisition of the new house. If the wife had had assistance of counsel, at the very least, any ultimate settlement would have made clear that a community asset had already been sold and that the proceeds had been used to fund the acquisition of new property, which would, itself, have been specifically identified in the settlement. But, with the wife proceeding without counsel while the husband kept his, none of that happened.
Now back to events two years later, with their attendant untidy enforcement issues. The money which the wife had lent the husband had not been repaid. Further, she claimed, the equalization payment called for in the divorce judgment had not been repaid either. She re-engaged her former attorney with a view to collecting the money owed on both obligations.
Her newly re-engaged attorney then took two steps that led to this civil lawsuit. First, he filed, on his client’s behalf, a notice of lis pendens concerning the Corona del Mar house that had been acquired under the loan and lease-back arrangement. The notice of lis pendens referenced the divorce case, as distinct from any “new” litigation. Second, he filed an abstract of judgment for the (allegedly) unpaid equalization payment.
The filing of the notice of lis pendens was a legal mistake. As we explain below, it was subject to expungement.
Then again, the notice of lis pendens had a remarkably short life. It was in existence from May 21 to June 6 (or June 9, depending on whether you count from its date of withdrawal or the date the recorder recorded it). That is -- at the most -- it affected the property for 19 days, or less than three weeks. And most of that time, it turns out, transpired while the wife’s attorney was on vacation. (To be sure, the husband incurred fees to prepare a motion to expunge the lis pendens, though that motion never had to be filed.)
The abstract of judgment lasted a while longer, for a little less than three months in the summer of 2003. When the satisfaction of judgment was filed on August 25, its filing was in the context of a new civil lawsuit brought by the wife in September 2003 to collect on the unpaid note. In this new civil suit she was represented by new civil attorneys, as distinct from her family law attorney. Her new civil attorneys filed a new notice of lis pendens on the Corona del Mar property without incident. When that new lawsuit was settled in the spring of 2004, husband ended up paying wife some $600,000.
But roughly at the same time the wife sued on the note, the husband launched a suit of his own. This one was directed against the wife’s family law attorney. (The wife was initially included but was dismissed prior to trial.) It is this lawsuit that is now before us.
The husband sued for three things: (1) slander of title of the Corona Del Mar property in his name based on the 19-day notice of lis pendens; (2) violation of the statute that provides for damages when a judgment has been satisfied and the judgment debtor makes an unhonored request of the judgment creditor for an acknowledgement of satisfaction of the judgment (Code Civ. Proc., § 724.050); and (3) abuse of process based on the abstract of judgment.
After the close of husband’s case-in-chief, the trial court granted a nonsuit motion on the abuse of process claim, a decision which is the main focus of husband’s cross-appeal in this case.
But the husband prevailed in a big way on the slander of title and statutory claims: The husband was awarded punitive damages of $225,000 on the slander of title cause of action alone. (The trial court determined that punitive damages were not available for the statutory cause of action. If it had, presumably the amount of punitives might have been larger.) The husband was also awarded about $307,000 in attorney fees for having brought the statutory cause of action against the wife’s attorney.
Almost as an afterthought, the husband obtained the somewhat smaller sums of $12,068.51 in actual damages for the filing of the abstract of judgment, and $3,217.44 in damages for the lis pendens. These figures were mostly based on the attorney fees incurred to prepare motions to attack the offending documents, even though those motions never had to be filed.
We affirm the $3,217.44 in damages for the lis pendens. Otherwise, we reverse the rest with directions that the husband take nothing more than the $3,217.44.
First, while the notice of lis pendens was indeed a legal error, there is nothing here to even remotely justify punitive damages for that error. The wife’s attorney acted with reasonable -- indeed admirable -- dispatch when, upon returning from his vacation, he obtained his client’s permission to remove the lis pendens. And, though the filing was a mistake, it was a very understandable mistake given the intimate relationship between the proceeds of the community residence, the secured note and the subsequent acquisition of the new property. There is nothing here to suggest that the wife’s family law attorney acted in conscious disregard of the husband’s rights.
Second, even if we assume that the issue of the applicability of section 724.050 to judgment creditors’ attorneys has been waived, there is still no substantial evidence as to two other elements of that statute:
(1) That the judgment be satisfied. Here, it hadn’t been. And
(2) that any refusal to file or send an acknowledgment of satisfaction be without “good cause.” Here there was abundant good cause and no evidence of lack of good cause.
Hence there is no basis for damages or attorney fees based on noncompliance with Code of Civil Procedure section 724.050.
All undesignated statutory references in this opinion will be to the Code of Civil Procedure except for references to “section 46,” which will be to the Civil Code.
II. FACTS AND HISTORY
A. The Divorce and Loan Lease-Back Deal
Geoffrey Le Plastrier filed a petition for dissolution in late June 2000. His petition asserted that there was already a written agreement disposing of the marital property, dated May 1, 2000. His had been a five and one-half year marriage to Stefanie Le Plastrier, now known as Stefanie Masters. According to an income and expense declaration filed by Stefanie in early August 2000, she had been a television and movie producer who had last worked in 1992. Geoffrey was a property developer who was making, according to Stefanie’s estimate, about $27,500 a month at the time. Obviously, one of her initial pleadings was a declaration seeking spousal support. Stefanie’s attorney from the beginning of the case was Gerald Phillips of the law firm of Phillips & Whisnant.
On this court’s own motion, we take judicial notice of the pleadings in Orange County Superior Court case number 00D006921, In re Marriage of Le Plastrier.
We deliberately refer to the couple by their first names, a common practice in family law opinions, to emphasize the family law origins and substantive domestic origins of this litigation. We obviously mean no disrespect by using first names. (E.g., In re Marriage of Berger (2009) 170 Cal.App.4th 1070, 1073, fn. 1.)
The dissolution culminated in a judgment, both as to marital status, support and assets, filed a year and one-half later, on January 5, 2001. Geoffrey and Stefanie had obviously been a wealthy couple, and, judging by the various items of community divvied up in the family law judgment, remained wealthy individuals after their marriage was dissolved. Geoffrey received what had been three community property apartments at 77 West 55th Street in New York City. Stefanie got no less than two community property homes in Newport Coast, California (if not equally trendy and expensive, certainly in the same rich league) plus another property in Century City. One of the two Newport Coast homes was located on Vernon in Newport Coast. The Vernon property had been the family residence.
The award of the Vernon property to Stefanie in a document dated January 5, 2001, is somewhat arresting, because -- as we explain below -- by that date the property had already been sold. The family law judgment did not make any reference, in regard to the Vernon property, to “or the proceeds thereof” or some other such language that recognized the fact that the community Vernon property had been sold prior to the January 5, 2001 judgment.
The divorce settlement also provided for an equalization payment from Geoffrey to Stefanie of $150,000, in three installments of $50,000 at the end of the first, second and third quarters of 2001. There were also provisions for spousal support ($3,000 for six months, with a provision saying that the court would have no jurisdiction to order support “beyond the terms” of the provision), for a one-time payment of $100,000 pursuant to the agreement made May 1, 2000 (presumably the one referenced in Geoffrey’s petition) and for continuing jurisdiction over the division of property in the agreement (“The court reserves jurisdiction over the division of property set forth herein so as to make any orders necessary to carry out the terms and conditions of said division.”).
On top of the January 5 judgment, on February 18, 2001, with the divorce judgment less than two months old, Geoffrey and Stefanie formalized a loan and lease-back arrangement in which Stefanie was the lender, Geoffrey the buyer and owner, and Stefanie the tenant.
We say “formalized,” because, when one studies the recitations of the agreement signed February 18, 2001, it is clear that the agreement embodied arrangements, if not a full deal, made in or around October 2000, just a few months prior to the January 5, 2001 final divorce agreement.
Here’s what the February 18, 2001 agreement recited:
Geoffrey had already bought a new place in Newport Beach (really in Corona del Mar as he would later testify) on Goldenrod in October 2000. The down payment on the property was $450,000, and the mortgage was $1 million. The property was a block from the beach.
The down payment for the Goldenrod property came from Stephanie, and she was the one who had already moved into the property in October 2000, wanting to lease it from Geoffrey the owner. Specifically, the down payment was $450,000, and $400,000 of that came from the sale of the family residence on Vernon.
Among the “facts” that the parties were making the agreement in “reliance” on were the encumbrances on the two items of major community real estate that had gone to Stefanie (the other Newport Coast property and the Century City property) in the divorce. Geoffrey wanted to be rid of the obligations on him represented by those encumbrances.
Turning to the operative portion of the agreement, it provided:
-- Stefanie would lease the Goldenrod property from Geoffrey, commencing October 2000, according to the terms of an attached lease.
Geoffrey would later testify that the rent Stefanie would pay was considerably below market -- only $3,000 a month for a house that would normally rent for around $10,000 to $12,000 a month.
-- Geoffrey would give Stefanie a note and second deed of trust on the Goldenrod property to “secure her $450.000.00.” The note was to be for one year and was to bear interest at the rate of 10 percent.
Geoffrey would also testify that part of the deal was the idea that the house would be sold later, with he and Stefanie splitting the profit, not to exceed $100,000.
-- Stefanie would sell or refinance the other Newport Coast property and the Century City property by October 15, 2001; Geoffrey would manage each property in the interim.
As part of Geoffrey’s acquisition of the Goldenrod property, Stefanie gave him a quitclaim deed signed October 4, 2000, recorded October 11, 2000. The note and deed of trust for $450,000 that Stefanie received were each dated October 11, 2000, and the note bore interest from October 11, 2000, that is, from a point two and one half months prior to the January 5, 2001 divorce judgment.
B. Where Did the Wife’s Attorney Go?
As mentioned, Geoffrey had filed for dissolution proceedings in June 2000; by late 2000 the case had been around for several months despite Geoffrey’s petition asserting there was already a written agreement disposing of the marital property. Phillips, by contrast, filed pleadings that did not acknowledge any such written agreement. The response he asserted for Stefanie asserted that “The full nature and extent of the separate property, assets and debts of the parties will be set forth at a later time,” with identical language on the next page for the “community and/or quasi-community assets and debts” of the parties.
By late 2000, however, Stefanie had decided to adopt a Russian baby. Her understanding of Russian adoption procedure was that she had to adopt as a single woman. However, as she would later testify in her deposition, to continue on with attorney Phillips would have “pushed the adoption off for an unclosed amount of time” as well as cost “a lot of money.” Court proceedings “could have gone on for years” and a settlement did not look likely if she continued with her attorney.
So, as she said in a later deposition, “I backed down in order to get my child, if that makes sense.” Phillips was substituted out of the case December 4, 2000. Stefanie was substituted in as her own attorney. A month later, there was a divorce judgment pursuant to a marital settlement agreement.
C. Post-Divorce Collection Efforts
1. The Lis Pendens
In April 2003, a little more than two years later, Stefanie believed that Geoffrey had not paid any of the equalization payments and also owed money on the note secured by the Goldenrod property. Stefanie contacted her erstwhile attorney Phillips about the debts. Phillips didn’t know the state of Geoffrey’s representation at that point, so he wrote a letter to Geoffrey directly, but courtesy copied it to Geoffrey’s divorce attorney. The letter referenced the (alleged) unpaid equalization payments and the unpaid note. The letter brought a reply from Geoffrey’s new counsel, simply asking for documents.
A few weeks later, on May 19, Phillips prepared a notice of lis pendens. He had it notarized the next day, served it on May 21, and recorded it on or about May 25. He also formally substituted back into the family law case on May 21.
The recording prompted a letter from Geoffrey’s new counsel, taking great exception to the lis pendens, including asserting that the Goldenrod property was “not even mentioned in the [Divorce] settlement.” The letter also asserted that Geoffrey had used his credit to buy a home for Stefanie to live in, at below market rent. The letter appeared to take the position that the equalization payments had all been paid (“the terms of the Settlement were fully met long ago”) but didn’t dispute the idea that money was owing on the note. Rather, the letter contained a series of itemized offsets totaling $175,000 that confirm our opening lines about divorce cases being strung out caravans.
These were not the sort of offsets that one who owed money to a bank would assert. They included: “spousal support” of about $94,000, health insurance premiums paid on Stefanie’s behalf, life insurance paid to protect Stefanie’s family, unpaid rent, miscellaneous expenses paid by Geoffrey’s development company, repairs and maintenance to two of the former community properties that Stefanie had received in the divorce, damage to the Goldenrod property caused by Stefanie’s live-in boyfriend and her adopted child, legal expenses for that live-in boyfriend and construction loan costs so that Stefanie could purchase land and build a home in New York. (Stefanie was now living in New York.) The letter ended with an offer to settle the dispute amicably (perhaps mediated by a retired judge), but only if the lis pendens was withdrawn by June 4, 2003.
If spousal support was owed as a matter of the family law judgment, it could not be used to offset anything. If it was a voluntary gift, it was a gift. The letter contains no legal reason to apply “spousal support” as an offset against money that Geoffrey otherwise owed Stefanie.
As luck -- or events -- would have it, Phillips had gone on vacation to Hawaii on May 23, and would not return to his office until June 5 -- the day after the June 4 deadline. Phillips’ associate asked Geoffrey’s new counsel for an extension of the June 4 deadline, but it was refused. On the day he returned, Phillips’ associate had a long telephone call with Stefanie, who authorized the withdrawal of the lis pendens. The very next day -- June 6 -- Phillips’ office prepared, notarized and served a formal withdrawal of the lis pendens, and that withdrawal was recorded June 9.
2. The Abstract of Judgment
On May 19, the same day that Phillips’ office prepared the lis pendens, it also prepared an abstract of judgment for some $204,167, again referencing the family law case. This particular document, however, was rejected by the recorder’s office for not having an amount that did not exactly correspond to the equalization payment in the family law judgment. Phillips prepared another one, which was recorded on June 18, 2003.
Meanwhile -- on June 13 -- Geoffrey’s attorneys had sent Phillips’ office a settlement proposal for a one-time payment of $400,000 to Stefanie, the most important part of which, for our purposes here at least, was that the $400,000 figure proposed to account for the $450,000 due on the note and a $50,000 obligation “in connection with the parties’ marital settlement,” but which also took into account Geoffrey’s $175,000 offset figure. Stefanie rejected the proposal.
On July 1, one of Geoffrey’s attorneys sent a letter asserting that Geoffrey had fully satisfied the judgment, but -- one should note -- the allegation of satisfaction assumed that Geoffrey’s $175,000 figure validly offset the $50,000 figure which the earlier settlement offer had indicated was still outstanding. Thus the letter included a copy of a check for $104,167 which, in the memo section in the lower left hand corner said, “spousal support settlement.” Geoffrey’s attorneys set a July 16 deadline to have the document withdrawn (via an acknowledgment of satisfaction of judgment). The July 1 letter also made reference to section 724.050 of the Code of Civil Procedure, which would be the basis of Geoffrey’s future statutory claim against Phillips (about which more anon in part III.C. of this opinion).
On the July 16 deadline day, Geoffrey’s counsel followed up with a formal demand for withdrawal of the abstract of judgment, i.e., for a filing of a formal acknowledgment of satisfaction, by personal service, no less. The letter again referenced the $104,167 check, but, again, offered no explanation as to why a check referencing a “spousal support settlement” (italics added) should count to satisfy a judgment calling for a payment intended to equalize the distribution of community property. When Phillips and his associate checked with Stefanie, though, Stefanie took the position that the equalization judgment had not been paid, and, in a handwritten letter dated July 21 to Phillips’ associate, asserted that the negotiations were all a “game” to Geoffrey. A letter from Stefanie dated August 1, 2003, asserted that she didn’t trust Geoffrey’s offset “numbers.”
Nevertheless, after a conversation with Phillips’ associate on August 12, Stefanie agreed to “pull the lien off” the Goldenrod property for a settlement of $450,000 for the unpaid note, $135,000 in interest, and another $50,000 allegedly owing in respect to the Century City property. On August 19, Stefanie wrote another letter saying that if Geoffrey didn’t settle, it was “off to court.”
Indeed, it was. Stefanie engaged a civil firm (the same attorneys who would later represent Phillips in this action) to pursue the note -- they would, among other things, file on September 17 a formal complaint for money owing on the note. Meanwhile, around August 18, Stefanie authorized the filing of a full satisfaction of judgment (despite feeling that the family law judgment had not all been paid) to be “done with it.” A full satisfaction was filed in the family law case on August 25, 2003.
3. Stefanie’s Civil Suit Against Geoffrey;
Geoffrey’s Civil Suit Against Stefanie
As noted, Stefanie’s complaint for the unpaid note was filed September 17, 2003. Geoffrey, however, beat her to the courthouse by seven days, filing this action, at first listing only claims for abuse of process and slander of title, against Stefanie, plus Phillips, his law firm, and his associate, on September 10, 2003.
Stefanie’s suit was settled in a document dated May 15, 2004. The settlement agreement recited that all of the terms from the divorce agreement had been “fully satisfied and/or waived.” The settlement provided, among other things, that Geoffrey would pay Stefanie $450,000 within seven days “constituting payment in full of the Note.” Within that seven day period, as part of the quid pro quo called for in the May 15 agreement, Geoffrey dismissed Stefanie from his abuse of process suit. His dismissal form underlined the word “only” as in “as against Defendant, Stephanie Masters only.”
D. Geoffrey’s Suit Against Phillips
That left Geoffrey’s abuse of process suit against Stefanie’s lawyer Phillips, his associate and their law firm. Back in early November 2003 -- when Stefanie was still in the case -- Stefanie and Phillips and company tried to quickly decapitate Geoffrey’s suit by way of an anti-SLAPP motion (see Code Civ. Proc., § 425.16). Their theory was that Geoffrey’s suit was a SLAPP suit (i.e., targeted against the exercise of their First Amendment right to petition the courts). The thinking was that the lis pendens and abstract of judgment were statements made “before a... judicial proceeding” (§ 425.16, subd. (e)(1)) or were otherwise statements “made in connection with an issue under consideration or review by a... judicial body” (§ 425.16, subd. (e)(2)).
Throughout this opinion we shall use the phrase “Phillips and company” when we want to refer to Phillips, his law firm, and his associate collectively.
The trial court denied the anti-SLAPP motion. The minute order emphasized that the defendants had not “met their burden of demonstrating that the action falls within” the anti-SLAPP statute, section 425.16, subdivision (e). While the question of privilege under section 47, subdivision (b)(4) issue was raised in the moving papers, there was no mention of it in the trial court’s minute order.
This court affirmed the order of denial in a nonpublished opinion, Le Plastrier v. Masters (Dec. 21, 2004, G033346) [nonpub. opn.] [2004 WL 2944077] (Le Plastrier I).) The essence of this court’s unpublished opinion was that the Goldenrod property had no connection with an issue then under review in the family law case. The opinion said: “Here, the dissolution judgment did not dispose of, or even refer to the Goldenrod property. Consequently, defendants failed to make a prima facie showing the lis pendens was connected to an issue under review.” (Le Plastrier I, supra, 2004 WL 2944077 at p. 3.) The opinion also flatly stated, in one place, that the family law case “had no connection to the property” (meaning the Goldenrod property).
Here is the text in which the comment was made:
On the question of whether the lis pendens was privileged under section 47 of the Civil Code, here is the entirety of what Le Plastrier I had to say on the topic: “Certain activity not protected by Civil Code section 47 may be protected under section 425.16, but defendants have not shown the trial courtlooked beyond the first prong of the Equilon test. The trial court concluded defendants ‘have not met their burden of demonstrating that the lis pendens was connected to the family law matter.’ We agree with the trial court the lis pendens was not ‘made in connection with an issue under consideration or review’ (§ 425.16 subd. (e)) because it was not connected to the family law matter.” (Le Plastrier I, supra, 2004 WL 2944077 at p. 4, italics added.)
Geoffrey’s case was now free to move forward to a jury trial, though, as noted above, after May 2004 without ex-wife Stefanie as a defendant. After the close of Geoffrey’s case in chief, the trial judge granted a nonsuit motion on his abuse of process claim, leaving his slander of title claims and statutory (§ 724.050) claim remaining.
As to Geoffrey’s actual damages, he claimed $4,871.19 in regard to the lis pendens and $14,036.51 for the abstract, all for attorney fees, mostly based on the preparation of unfiled motions to expunge the lis pendens and remove the abstract. Geoffrey abandoned claims for additional damages based on damage to his credit for the tactical reason of not dragging the case out, though his trial lawyer certainly let the jury know about the allegations of damage to his credit.
The jury awarded the $4,871.19 for the lis pendens, and $14,036.51 for the abstract, as requested. It found Phillips, but not his associate, acted with malice oppression or fraud in connection with the lis pendens, and assessed punitive damages against him of $225,000 based on the slander of title claim. The trial judge had previously ruled that punitive damages were not available for the statutory claim.
Motions for new trial and for judgment notwithstanding the verdict were timely filed (that is, on December 27, 2006, within 15 days of the filing of a judgment filed on December 8). Among the grounds raised for the motion for judgment notwithstanding the verdict -- albeit, for the first time, raised in a reply brief to Geoffrey’s opposition -- was the idea that statutory liability for not timely filing an acknowledgment of satisfaction of judgment extends only to judgment creditors, as distinct from the attorneys for judgment creditors.
The motions failed, except for a small reduction accomplished by way of a remittitur on the new trial motion reducing the actual damages. The trial judge reasoned that the fees incurred by Geoffrey for the removal of the lis pendens “should have ceased” upon “withdrawal of the recorded instrument on June 9, 2003.” The bill for the lis pendens was, properly, $3,217.44. Similarly, the trial judge reasoned that the attorney fees and costs ascribable to obtaining the satisfaction of judgment totaled $12,068.51. The two amounts, adding up to $15,285.95, represented the “total allowable compensatory damages” as to the slander of title and statutory claims.
There was a post judgment motion for attorney fees. The theory of the motion was that section 724.080 (the attorney fee provision appended to section 724.050) required an award of fees. The motion asked for $399,076.72 for the litigation of Geoffrey’s civil case, and asserted that there should be no apportionment between fees incurred to prosecute Geoffrey’s statutory claim (assertedly recoverable under section § 724.050) and his slander of title claim (admittedly not allowable as a simple tort claim), since both claims involved issues that were “inextricably intertwined.” According to the motion, such intertwined issues included: what the attorneys learned from their client Stefanie, their lack of certainty over whether the “purported debts arose” under the divorce or “some post-divorce agreements” and Phillips’ general ill-will toward Geoffrey. The basic theory was that Phillips had used the lis pendens and the abstract of judgment to “‘blackjack’” Geoffrey into “paying monies” that Phillips “knew were not owing.” (Italics in original.)
The trial court awarded $307,145.22 for the attorney fees, agreeing with the “inextricably intertwined” view of the two claims. The trial judge specifically rejected, based on “‘invited error’” the idea that, because Phillips and company were not judgment creditors, they could not be liable under the statute (§ 724.080) requiring fees against judgment creditors who don’t file acknowledgments of satisfaction of judgments that have, in fact, been paid.
The judge pointed to three instances where Phillips’ defense counsel had, he believed, invited the error: (1) Defense counsel for Phillips had proposed jury instructions in regard to the statutory claim which omitted any need for the jury to decide whether Phillips and company were judgment creditors; (2) defense counsel for Phillips did not object to the instruction as given; and (3) in closing argument, defense counsel for Phillips (in the words of the trial judge) “conceded his client would be liable under the code section if the other elements were satisfied.” The three circumstances constituted the invited error, so Phillips and company could not be “heard to complain that they are not liable under the statute.”
A final amended judgment was soon filed, providing for:
-- compensatory damages of $15,285.95;
-- punitive damages of $225,000 against Phillips and his law firm;
-- attorney fees of $307,145.22 against Phillips, his law firm, and his associate; and
-- costs of $13,581 against Phillips, his law firm and his associate,
was filed April 18, 2007.
Phillips’ notice of appeal followed within five days. Geoffrey had already filed a cross-appeal on March 8, 2007 from the judgment that had been filed December 8, 2006. In the cross-appellant’s portion of his brief, his primary focus is on the trial court’s nonsuit of his abuse of process claim.
III. PHILLIPS’ APPEAL
A. Section 47 Privilege Not Applicable to Slander of Title Compensatory Damages of $3,217.44
Phillips asserts that the filing of the lis pendens was privileged under Civil Code section 47, subdivision (b)(4). Geoffrey says that the argument is barred by law of the case. Since we determine that the section 47 privilege was not available to Phillips in any event, we need not decide the law of the case issue.
The actual language of section 47, subdivision (b)(4) is: “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.” (Italics added.)
The phrased “authorized by law” naturally refers to the statutes authorizing the filing of lis pendens, most basically section 405.20, which does, literally, authorize the filing of a lis pendens. Section 405.20 provides in full: “A party to an action who asserts a real property claim may record a notice of pendency of action in which that real property claim is alleged. The notice may be recorded in the office of the recorder of each county in which all or part of the real property is situated. The notice shall contain the names of all parties to the action and a description of the property affected by the action.” (Italics added.)
In Gale v. Superior Court (2004) 122 Cal.App.4th 1388 (Gale), this court had occasion to explore what section 405.20 means by “real property claim,” as the term is specifically defined by the Legislature in section 405.4. Section 405.4 provides that “‘Real property claim’ means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility.” (Italics added.)
Gale held that specific means specific. Accordingly, a family law pleading with vague “the community property has yet to be ascertained” sort of language could not support the filing of a lis pendens.
“The plain language of the governing statute, section 405.4 of the Code of Civil Procedure,” we said, “requires a pleading which alleges a claim that affects title or possession to ‘specific real property.’” Thus: “The common practice of family lawyers in this state of being deliberately cagey or noncommittal in the family law petition or response by not specifying items of community and separate property (e.g., ‘such assets as may be discovered at a later date’ or ‘the full nature and extent of petitioner’s community property is unknown at this time’) does not comply with the statutory requirements allowing the filing of a notice of lis pendens, and consequently will not support such a filing.” (Gale, supra, 122 Cal.App.4th at pp. 1390-1391.)
The 2000 response to Geoffrey’s petition that Phillips prepared for Stefanie was decidedly of the old school of family law pleading, saying that the full extent of the community property would be set forth later. Thus, under Gale, the pleading itself could not have supported a lis pendens to any property. Since the only substantive challenge in this appeal to the $3,217.44 in compensatory damages is based on section 47, we must affirm the judgment to the extent it awards those damages.
B. Slander of Title Punitive Damages of $225,000: No Substantial Evidence
Preliminarily, we note that on the punitive damage issue, nothing we said in Le Plastrier I could be law of the case. The law of the case doctrine requires a substantial identity of facts. (E.g., Standard Oil Co. v. Johnson (1942) 56 Cal.App.2d 411, 416, and cases cited [“the law of the case is applicable, if at all, only when on subsequent hearing there is a substantial identity of facts”].) Where there is a substantial difference” in the facts the doctrine does not apply. (See Dewees v. Kuntz (1933) 130 Cal.App. 620, 622 [“Where there is a substantial difference in the evidence offered at the second trial the rule cannot apply.”].) The facts in the anti-SLAPP motion reviewed by this court in Le Plastrier I are a small fraction of the total facts put before the court and jury in the case before us.
Turning then to the merits, we begin with Civil Code section 3294, governing punitive damages. The statute provides its own definitions of oppression, fraud and malice. Oppression is “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.” (Civ. Code, § 3294, subd. (c)(2)), italics added.) Fraud means “an intentional misrepresentation, deceit or concealment of a material fact known to the defendant with the intention on the part of the defendant of depriving a person of property or legal rights otherwise causing injury.” (Civ. Code, § 3294, subd. (c)(3), italics added.) Malice is conduct “intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights, or safety of others.” Civ. Code, § 3294, subd. (c).)
By these standards, there is no way any punitive damages may be upheld against Phillips or his law firm.
Geoffrey posits various items of evidence which, he asserts, constitute substantial evidence that Phillips “acted with fraud, malice or oppression.” (Geoffrey, tellingly, doesn’t say “acted with fraud, malice or oppression in doing X or Y,” because when one asks precisely what Phillips did that was so horrible, the construct of fraud malice or oppression begins to unravel.) We address these items in the order in which Geoffrey’s brief sets them forth. After the item, we explain why it cannot support a finding of fraud malice or oppression as those terms are defined by section 3294:
(1) Testimony that Phillips came up with the idea of filing a lis pendens after a single 30-minute meeting with Stefanie. The idea that Geoffrey insinuates here is that merely not getting all the facts is enough to show malice. The idea is untenable. Given that Phillips knew the substantive connection between the divorce case, in which the Vernon property was community, with the Goldenrod property, which was itself the receptacle of the proceeds of the sale of the Vernon property, filing a lis pendens to prevent Geoffrey from, in effect, running away with a substantial portion of what Stefanie got in the divorce, was perfectly logical. The Gale opinion was still years into the future, and, as we intimated there, at the time in 2000, it had been the common, if sloppy, practice of family law attorneys to assume that a divorce case would automatically support the filing of a lis pendens.
(2) Phillips’ decision to file a lis pendens despite a statement from Stefanie that the Goldenrod property “was not part of the divorce case or resulting judgment.” First, Phillips was the lawyer, not Stefanie, so Stefanie’s opinion that Goldenrod was not “part” of the divorce would not preclude Phillips, as an experienced family law attorney, from concluding otherwise. Second, as noted above, the doctrine of law of the case does not apply where the facts the first time are not substantially identical with the facts the second time, and, looking at the facts before us in this appeal, there can be no doubt that the Goldenrod property was the direct proceeds of the Vernon community property, and thus properly “part” of the divorce. (See In re Marriage of Shelton (1981) 118 Cal.App.3d 811, 816 [proceeds of community property acquired after separation remain community property].) Thus Phillips was right; Stephanie’s opinion was irrelevant. Stefanie had simply gone along with papers prepared by Geoffrey’s family law lawyer that had not acknowledged the community origins of the Goldenrod property prior to the divorce judgment.
(3) Phillips’ advice to Stefanie that a lis pendens was a legal “device” that could be put on for a few days to “get some of this money.” There is nothing in this that shows conscious disregard of Geoffrey’s rights. All it shows is what most attorneys already know: A lis pendens is a powerful bargaining chip. We said that ourselves in Gale. (See Gale, supra, 122 Cal.App.4th at pp. 1394-1395 [sand in the gears metaphor].)
(4) Stefanie’s testimony that “Phillips [sic] convinced Masters [Stefanie] to fire Phillips in 2000. Geoffrey’s brief obviously refers to Geoffrey’s having convinced his wife Stefanie to fire Phillips. The lawyer didn’t convince his client to fire himself. That said, the evidence that a husband doesn’t want his soon-to-be ex-wife to continue with experienced divorce counsel was, objectively, a reason for Phillips to be highly suspicious of Geoffrey. There is nothing in this fact that shows Phillips was acting in conscious disregard of any rights of Geoffrey’s. Being legally wrong doesn’t show conscious disregard of rights. (E.g., Morris v. Paul Revere Life Ins. Co. (2003) 109 Cal.App.4th 966 [even an insurance company does not become exposed to tort or punitive damages merely for having made an incorrect coverage denial].)
(5) Geoffrey’s testimony that Stefanie told Geoffrey, after she had rehired Phillips, that Phillips was “out to get” Geoffrey, and “even the score.” As one might intuit on first reading of this point, the parties have devoted considerable attention in their briefs to the question of whether this testimony, given over vociferous objections of Phillips’ trial counsel, should have been admitted at all. (We set forth the relevant text in the margin.) Let’s cut to the chase: A family law client’s opinion that her attorney is out to “get” her ex-husband or “even the score” is not substantial evidence that the attorney acted in conscious disregard of the ex-husband’s rights. At most it might be the basis for an inference (we do not even go so far as to say a reasonable inference) that her attorney actively disliked the ex-husband. And in this case, given that the ex-husband had indeed contrived to get the attorney discharged so that he would have a free hand with the language of the divorce judgment, which free hand obfuscated the community nature of the down payment used for the Goldenrod property, any such dislike on Phillips’ part was thoroughly understandable. Opposing counsel aren’t expected to like their client’s adversaries, and no malice can be inferred from the fact they don’t.
“Q. [Of Geoffrey, by Geoffrey’s trial counsel]: First of all, lay the foundation. Where were you when you first learned that Ms. Masters had rehired Mr. Phillips?
Our determination that Stefanie’s “out to get” statement is not substantial evidence of malice obviates any need to discuss whether it was properly admitted against a hearsay objection in the first place.
(6) Phillips did not “bother” to ask Stefanie whether Geoffrey’s debt to her had been “offset” by payment of “medical and other expenses” by Geoffrey. Geoffrey’s “offsets” were not of the nature that an experienced family law attorney would normally think counted against the clear debts set forth in the note and divorce judgment. On their face, such payments were independent obligations that Geoffrey already had, such as spousal support, or gifts, or both gifts and spousal support. Health insurance premiums, life insurance premiums are normally items included in a support obligation, and gifts to a new boyfriend hardly seem like they should be “offsets” as against a judgment calling for a community property equalization payment. Other items were related to Stefanie’s obligation to pay rent on the Goldenrod property, as distinct from payments on the obligations represented by the divorce judgment, so the natural assumption would be that they were independent of that judgment. And in any event, Phillips’ failure to ask Stefanie about the possibility of offsets does not show conscious disregard of Geoffrey’s rights, since offsets are an affirmative defense which would be Geoffrey’s burden to carry. (See § 431.70 [noting that offsets may exist independently of obligation].)
If things had been done according to Hoyle, Stefanie would have sued for the unpaid equalization amounts still owing under the family law judgment, and -- depending on what the facts might show as to whether the “support” payments were gifts or support called for by the judgment, or not -- Geoffrey’s payments would have been used to offset any recovery by Stefanie. But since none of those payments were clearly marked: “To pay off the obligation in the judgment of January 5, 2001” or words to that effect, the recordation of the abstract would still have been proper.
(7) The lis pendens was executed a few hours after Phillips’ initial meeting with Stefanie. Given the substantive relationships between the Goldenrod property, Phillips’ good reason to distrust Geoffrey, and the risk to Phillips’ client if he did not act with dispatch, the timing of the lis pendens cannot show any conscious disregard of Geoffrey’s rights.
(8) Phillips’ associate did not review public records on Goldenrod before recording the lis pendens. This point, though not developed in Geoffrey’s brief, suggests that Stefanie’s signing of a quitclaim deed on the Goldenrod property at the time of its acquisition by Geoffrey simply wiped out, a fortiori, any claim that Stefanie had on the property. Not so. The October 11, 2000, quitclaim deed could not have transferred Stefanie’s interest in the property, acquired by note and deed of trust in February 2001. (See In re Marriage of Gioia (2004) 119 Cal.App.4th 272, 280 [“A quitclaim deed, however, ‘transfers only whatever interest the grantors possess at the time of the conveyance.’... By issuing the quitclaim deed, Dye was only transferring whatever interest the estate possessed at the time of conveyance, if any.” (Italics added and original italics deleted.)].)
Moreover, even if some sort of estoppel by deed, or “after acquired title” doctrine were applicable, Geoffrey would himself be estopped to assert it. (An estoppel to assert an estoppel.) Stefanie relied on him to her detriment by loaning him $450,000, receiving in return a note and deed of trust.
Finally, there is no evidence that Phillips had any reason to know that anything that might have been uncovered by getting a title report would show that Stefanie’s claim to not having been paid on the note or the divorce equalization payment was false.
(9) The “aggressive and belittling tone” of Phillips’ letter to Geoffrey’s counsel. The letter was written July 16, 2003 (after the lis pendens was withdrawn), and contains no personal invectives. It references a “threatening” letter recently received from Geoffrey’s counsel, takes issue with the idea that $104,167 should be an offset given its caption of “Spousal Support,” again refers to a “threat regarding suit,” refers to mathematical miscalculations made by Geoffrey’s counsel, posits a misallocation of money attributed to offsets, and ends with this tart, but understandable comment: “Please keep your threats regarding lawsuits to yourself, or send them to someone who is intimated by such threats.” There is nothing in the letter that even crosses the bounds of civil discourse, much less evidences some sort of free floating conscious disregard of Geoffrey’s rights.
(10) Phillips’ refusal to return phone calls from opposing counsel. At the most (one should remember that Phillips was on vacation for almost all the period in which the lis pendens was operative) this was professional discourtesy. Rudeness, however, does not by itself show conscious disregard of someone’s rights.
(11) Phillips’ refusal to go to mediation before JAM’s. Not arbitrating a dispute also does not show conscious disregard of someone’s rights.
(12) Stefanie wrote a letter showing that Phillips had a plan to release the $155,000 abstract of judgment only if Geoffrey paid $635,000 to Stefanie. The assertion is a mischaracterization of the record. Geoffrey’s brief makes two record references for this statement, the first at appellant’s appendix at page 1332-1333, the second at page 1366.
The first is a letter that Phillips wrote on June 20, 2003 to counsel for Geoffrey. That letter merely takes issue with the $175,000 offset figure (a very reasonable position as we have shown) and reiterates a legal contention that Geoffrey owed a total of $785,000. There is nothing in the letter that links release of the abstract to payment on the note. In fact the letter does not mention the abstract of judgment.
The second is a handwritten letter from Stefanie to Phillips’ associate written about August 12 or later. That letter confirms a decision to “pull the lien” off the Goldenrod property in return for a settlement of $635,000, which consisted of $450,000, $135,000 in interest, and $50,000 owing in regard to the Century City property. It then goes on to reference various other items that Stefanie wanted from Geoffrey in the way of art and furniture (plus the deed to her home in New York, which apparently Geoffrey still had), and ended with a paragraph saying that Geoffrey could “keep his house (227 [Goldenrod] -- which he now lives in & owns outright) -- $100,000 he was to pay me. & the $50,000 divorce settlement. This should more than offset the $ he says I owe him. Let me know - thanks, Stefanie.” There is nothing in this letter that evidences -- or even approaches -- the idea that Phillips would not release the abstract of judgment if, indeed, it had been validly paid. It merely was discussing a global settlement of the various claims that Stefanie and Geoffrey had against each other.
Probably August 13. While the letter is dated July 13, its reference to “our conversation Tues, Aug. 12, 03” indicates it was written no earlier than August 13.
(13) Phillips’ own handwritten note showing an “intent to ‘tie up’” Geoffrey’s property. The note in question (again, based on the record reference in Geoffrey’s brief, this to page 1375 of the appellant’s appendix) is dated August 22, 2003, and references a conference call with Stefanie’s, later Phillips’ civil attorney. It is a simple list of issues and items, and reads almost like haiku.
We now set out the note in its entirety, as it appears in the record, sans quotation marks:
Straight note
2nd Trust deed -- we have
rights to do Lis Pendens
Bank accounts? what can we
tie up?
No payments against note.
Sold by
on sale of prop or term of lease
Geoff will pay $100,000
She’s entitled to fees
under
[verified it
[removing.
And that’s it. There is nothing in this poem to indicate that Phillips wanted to do anything in contravention of his own client’s rights under the law. Moreover, the question “What can we tie up?” is a perfectly legitimate question that creditor’s attorneys are entitled to ask when contemplating litigation.
(14) Phillips’ decision to record a lis pendens and only withdraw it after Geoffrey had incurred the cost of preparing a motion to expunge. We have shown that substantively there was a connection between the family law case and the Goldenrod property. Phillips released the lis pendens within days of receiving his client’s go-ahead to do so. Nothing here shows conscious disregard of Geoffrey’s rights. What it does show is a fidelity to his client’s wishes and reasonable alacrity in trying (even if incorrectly) to protect his client’s interests.
(15) Phillips and company’s decision to record an abstract of judgment but only release it after Geoffrey’s counsel “threatened them” and filed a motion to compel the abstract’s removal. First, as shown, the recordation of the abstract was at least reasonable, given that Geoffrey’s position was that he had paid off the family law equalization judgment by means of offsets which, on their face, were not the sort of payments that one would expect to pay off a family law equalization award. Second, the fact that an attorney acquiesces to a request in light of possibly adverse legal consequences by no means shows malice: Acquiescing to the possibility of an adverse court decision and adjusting one’s position in the light of that possibility is what the settlement of cases is all about.
(16) Phillips decided to record a lis pendens and abstract of judgment based on “information that was ‘sketchy at best’” and insufficiently certain to allow a pleading to be filed in the family law court. For this statement Geoffrey’s brief provides a record reference to the testimony of a deposition of Phillips’ associate, in which she stated that she could not “accurately plead the arrears without further information” from Stefanie, and the further information she got was “sketchy at best.” In any event, the assertion does not show a conscious disregard of Geoffrey’s rights. At most, it shows that Phillips erred in deciding that the possibility of his client’s losing $450,000 if he didn’t file a lis pendens outweighed the possibility that further information might show that the lis pendens was uncalled for.
That completes Geoffrey’s list of items supposedly justifying punitive damages. None is substantial evidence of malice, fraud or oppression.
We merely add the thought that there is affirmative evidence, based in the timing of the filing of the lis pendens, that Phillips did not act with malice, fraud or oppression. Recall that Phillips went on vacation for almost all the life of the lis pendens, and, within two days upon his return, obtained his client’s consent and then withdrew the lis pendens. That is, Phillips acted with admirable dispatch upon returning from vacation. Everything about the scenario refutes the idea that Phillips had recorded the lis pendens for an improper purpose; everything about the scenario points in the direction that Phillips had simply acted to protect his client. Cases where courts have upheld punitive damages for slander of title based on the recording of a lis pendens involved real malfeasance by the client, usually some species of fraud. (E.g., Castaic Clay Manufacturing Co. v. Dedes (1987) 195 Cal.App.3d 444 [fraudulent deeds]; Seeley v. Seymour (1987) 190 Cal.App.3d 844 [phony ground lease, but reversing because punitive damages were excessive].) They do not involve lawyers trying to protect their clients where, as here, there was at least a prima facie case that the client’s interest in the property was at risk.
C. Section 724.050 Damages and Attorney Fees:
No Substantial Evidence to Support Section 724.050 Liability
The trial court awarded damages and attorney fees against Phillips and company pursuant to section 724.050.
On appeal, Phillips argues that the statute has no application to the attorneys of judgment creditors, as distinct from judgment creditors themselves, so the judgment is improper for that reason alone. Geoffrey asserts the argument was waived because not raised at the trial level.
We need not address the waiver issue, because -- even assuming that the issue was waived -- there is no substantial evidence to support a recovery for Geoffrey on at least two of the elements of section 724.050 liability. Quite independent of whether the statute applies to attorneys of judgment creditors, the statute requires at least these elements:
Section 724.050 provides:
(1) That the plaintiff send a demand letter to the judgment creditor demanding an acknowledgment of satisfaction of the judgment: “[T]he judgment debtor... may serve personally or by mail on the judgment creditor a demand in writing that the judgment creditor do one or both of the following....”
(2) That the judgment have, in fact, been satisfied: “If a court proceeding is necessary to compel you to comply with this demand, you will be required to pay my reasonable attorney’s fees in the proceeding if the court determines that the judgment has been satisfied....”
(3) That the judgment creditor have failed “without just cause” to file with the court or otherwise send an acknowledgment of full satisfaction to the plaintiff: “In addition, if the court determines that you failed without just cause to comply with this demand within the 15 days allowed, you will be liable for all damages I sustain by reason of such failure and will also forfeit one hundred dollars to me....”
Even if we substitute the concept of “person to be held liable” in place of the statutory words “the judgment creditor” in the various elements of the statute (because the issue was supposedly waived), Geoffrey still did not present substantial evidence of two elements, namely full satisfaction and refusal to file or send an acknowledgment of full satisfaction without just cause. (The facts indicate that Geoffrey complied with the element of sending a demand letter.)
1. No Substantial Evidence to Support the Paid in Full Element
The italicized words constitute what Geoffrey points to as the evidence he satisfied the family law judgment prior to the time of his demand letter to have the abstract withdrawn. Our explanation as to why each item fails to support the point follows.
(a) Geoffrey’s own testimony that he had paid all spousal support due. While past due unpaid spousal support certainly could have been the basis for an abstract of judgment, the reason Stefanie rehired Phillips was to collect on the community property equalization payment, not a spousal support arrearage.
(b) Geoffrey’s own testimony that “After the divorce was finalized and [the judgment] was filed with the court,” he did not “at any time refuse to pay any of the lawful debts that [he] owed [Stefanie] under [the family law] judgment.” Since this testimony merely states a legal conclusion, and contains the fudge word “refuse,” it is not substantial evidence that he actually paid Stefanie the equalization amount.
(c) Stefanie acknowledged Geoffrey’s “full satisfaction of the judgment from the Divorce Case on multiple occasions” at a point “Prior to the recording of the lis pendens.” The record reference given is to the testimony of Penny Vicari, Geoffrey’s personal assistant, who was allowed -- over a hearsay objection and motion to strike from Phillips’ trial counsel -- to answer the following question: “Now, did you ever have an opportunity to discuss with [Stefanie], the subject of whether the divorce judgment had, in fact, been paid by [Geoffrey]?” (Italics added.) The answer was: “She had been paid in full.” Later (after discussion between the trial judge and counsel) Vicari added, “We discussed it a few times.” Finally, in response to the question, “Was there any -- do you have any doubt in your mind that [Stefanie] clearly communicated to you the fact that she had been paid in full in connection with the divorce judgment that she had against her ex-husband?” Vicari answered: “There was no doubt in my mind. No. We had lunch together. We discussed it.”
First of all, this evidence is indefinite as to time: Nothing in the cited record references indicates that Stefanie’s “paid in full” statement came prior to the recordation of the lis pendens in May 21.
Second, and more importantly, the evidence is hearsay, not otherwise justified by the party admission exception, and thus not substantial evidence of payment. If it is error in a criminal case to allow an inculpatory statement from a codefendant to come in as a party admission against a fellow defendant (see People v. Anderson (1987) 43 Cal.3d 1104, 1123), how much more so is it error in a civil case to allow a statement from a dismissed defendant.
Readers at this point will also note the lack of specificity in the evidence proffered by Geoffrey to support the idea that the family law judgment had been paid prior to the July 1, 2003 letter asserting that the family law judgment had been paid. It is all conclusions, and hearsay.
When Geoffrey finally does get specific, he points to: miscellaneous bills of a support nature paid on Stefanie’s behalf, specifically health insurance premiums, her mother’s medical bills, veterinary bills, closing costs on a new home and her boyfriend’s immigration expenses. But such payments are generically support payments or gifts. None constitutes a clean, unambiguous payment of an equalization obligation under the family law judgment.
In short, we are back to the proposition that the $175,000 in claimed offsets paid off the equalization payment. And yet the June 13 letter from Geoffrey’s counsel -- a true party admission -- recognized that at least $50,000 had yet to be paid on the family law judgment.
2. No Substantial Evidence to Support the Lack of Good Cause Element
Section 724.050 is remarkably structured. It is not enough that a judgment be paid in full. There must also have been a demand letter (as specified in subdivision (a)) asking that the judgment creditor either file an acknowledgment of satisfaction of judgment with the court or deliver one to the person who made the demand). Further, the judgment creditor must have “fail[ed] without just cause to comply with the demand within the time allowed.” The time allowed is 15 days under subdivision (b).
Good cause is unavoidable in this record. Geoffrey’s entire “paid in full” argument rested on the idea that offsets of a support nature counted toward a community property equalization payment. The $104,000 check said “support” on it. Geoffrey’s counsel admitted in a letter that there was still $50,000 to be paid on an obligation in the family law judgment. In short, because Geoffrey had not been clear in specifying which payments counted toward what obligation -- as distinct from which were mere expressions of goodwill toward an ex-spouse -- Phillips and company faced a murky, ambiguous record. On top of that, since Phillips and company were acting on Stefanie’s behalf, and Stefanie -- the client -- still maintained that she had not been paid in full. Recall that as late as August 1, Stefanie was still maintaining to Phillips and company that she didn’t trust Geoffrey’s offset “numbers.”
And finally, Phillips and company could not have filed or sent an acknowledgment of satisfaction of judgment unless their client was willing to sign it. And Geoffrey points to no evidence indication that Stefanie was willing to sign an acknowledgment of satisfaction until August 18, which was a mere week before the acknowledgment of satisfaction was actually filed.
D. No Attorney Fees Pursuant to Section 724.050
The attorney fees were justified as pursuant to section 724.050, but the precise authorizing statute is section 724.080, which consists of one sentence: “In an action or proceeding maintained pursuant to this chapter, the court shall award reasonable attorney’s fees to the prevailing party.” Since the attorney fees awarded in this case were predicated on the idea that Geoffrey was the prevailing party, and we have determined that he could not prevail under section 724.050, the attorney fee award is reversed. We express no opinion as to whether Phillips and company, now that they are the prevailing parties, may in the future seek attorney fees under section 724.080.
IV. THE CROSS-APPEAL
A. The Abuse of Process Claim
Geoffrey argues that the trial court erred in granting a directed verdict on his abuse of process claim. We think there was no error in this regard.
As to the lis pendens, the recordation of a lis pendens is not a “process” amenable to an abuse of process claim. (Woodcourt II Limited v. McDonald Co. (1981) 119 Cal.App.3d 245, 249-251 [wrongful recordation of a notice of lis pendens cannot be the basis for causes of action for abuse of process].) Further, as we have explained, given the intimate tie between the Goldenrod property and the family law judgment, there certainly was a proper, litigation specific purpose for the recordation of the lis pendens.
As to the abstract of judgment, what we have said about the absence of evidence that the family law judgment having been satisfied and the good cause Phillips and company had to record it, disposes of the point.
B. Leave to Amend to Add Geoffrey’s Corporation
Geoffrey argues that the trial court erred in denying him leave to amend his complaint to add his corporation. (His theory is that the lis pendens and abstract also affected the corporation’s credit as well as his own.)
Because Geoffrey cannot prevail on either the slander of title or section 724.050 causes of action, it made no difference that the trial court denied his motion to add his corporation as a plaintiff. (Geoffrey wanted to add the corporation).
C. Leave to Amend, to Let Phillips and Company, Assert a Defense of Privilege
Geoffrey’s argument that the trial court erred in allowing an amendment to state a privilege defense, in combination with Phillips and company’s putative “refusal” to respond to a form interrogatory, is insufficiently explained in his cross-appellant’s brief to be a cognizable argument. There is no explanation as to the nature of the amendment, any prejudice, how the amendment might have affected the trial or outcome, or even the subject covered by the form interrogatory. Finally, as we have shown above, Geoffrey’s slander of title and section 724.050 claims fail wholly independent of any privilege asserted by Phillips and company.
V. CONCLUSION
The judgment is affirmed to the extent of $3,217.44. The rest of the judgment is reversed, with directions to the trial court to enter a new judgment that Geoffrey Le Plastrier take nothing beyond $3,217.44 by way of his complaint against the defendants (i.e., Phillips, Phillips’ law firm, Phillips’ associate, or any other of the defendants still in the case after Stefanie Le Plastrier, aka Stefanie Masters was dismissed).
As the substantive winners and prevailing parties, appellants shall recover their costs on appeal.
WE CONCUR: BEDSWORTH, J., O’LEARY, J.
For reader convenience, here is an outline of this opinion:
I. OVERVIEW
II. FACTS AND HISTORY
A. The Divorce and Loan Lease-Back Deal
B. Where Did the Wife’s Attorney Go?
C. Post-Divorce Collection Efforts
1. The Lis Pendens
2. The Abstract of Judgment
3. Stefanie’s Civil Suit Against Geoffrey; Geoffrey’s Civil Suit Against Stefanie
D. Geoffrey’s Suit Against Phillips
III. PHILLIPS’ APPEAL
A. Section 47 Privilege Not Applicable to Slander of Title Compensatory Damages of $3,217.44
B. Slander of Title Punitive Damages of $225,000: No Substantial Evidence
C. Section 724.050 Damages and Attorney Fees: No Substantial Evidence to Support Section 724.050 Liability
1. No Substantial Evidence to Support the Paid in Full Element
2. No Substantial Evidence to Support the Lack of Good Cause Element
D. No Attorney Fees Pursuant to Section 724.050
IV. THE CROSS-APPEAL
A. The Abuse of Process Claim
B. Leave to Amend to Add Geoffrey’s Corporation
C. Leave to Amend to Let Phillips and Company Assert a Defense of Privilege
V. CONCLUSION
“Defendants have also failed to demonstrate their actions are protected under section 425.16, subdivisions (e)(1) or (e)(2). Although the lis pendens meets the ‘written statement’ requirement in both subdivisions, it was not made ‘before’ or ‘in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.’ The lis pendens was recorded referencing a family law case number and caption that had no connection to the property. At the time it was recorded, no issue was under consideration by any legislative, executive, or judicial body, or any other official proceeding.” (Le Plastrier v. Masters, supra, 2004 WL 2944077 at p. 3, orig. italics omitted.)
“A. In the living room of my condominium.
“Q. And who was there with you?
“A. Only Stefanie and myself.
“Q. And did Ms. Masters, at the time, advise you that she’d retained Mr. Phillips?
“A. Yes, sir.
“Q. What specifically do you recall Ms. Masters telling you about her having retained Mr. Phillips a second time?
“[Hearsay objection, overruled.]
“A. Well, she, for the -- the last several years had told me that
“[Relevance objection; Court says its ‘non-responsive’ and Geoffrey’s attorney reframes the question.]
“Q. What did she tell you during that occasion in you living room that you can now recall?
“A. She told me that she had retained, again, Mr., Phillips to help her recover funds. And that although she had said over the last two years that she didn’t like Mr. Phillips and couldn’t stand him.
“[Objection that answer was non-responsive; sustained.]
“[Continuing with answer]: But that he was fairly anxious to get back at me because he believed that I term -- I engineered his termination the first time around.
“[Motion to strike as non-responsive and hearsay on hearsay; motion was denied.]
“Q. [By Geoffrey’s counsel]: She told you that?
“A. Yes, sir.
“Q. On that occasion?
“A. On that occasion.
“Q. Did she specifically use the words ‘out to get you?’
“A. Out to get me, get even, even the score. All of those sorts of words.”
“(a) If a money judgment has been satisfied, the judgment debtor, the owner of real or personal property subject to a judgment lien created under the judgment, or a person having a security interest in or a lien on personal property subject to a judgment lien created under the judgment may serve personally or by mail on the judgment creditor a demand in writing that the judgment creditor do one or both of the following:
“(1) File an acknowledgment of satisfaction of judgment with the court.
“(2) Execute, acknowledge, and deliver an acknowledgment of satisfaction of judgment to the person who made the demand.
“(b) The demand shall include the following statement: ‘Important warning. If this judgment has been satisfied, the law requires that you comply with this demand not later than 15 days after you receive it. If a court proceeding is necessary to compel you to comply with this demand, you will be required to pay my reasonable attorney’s fees in the proceeding if the court determines that the judgment has been satisfied and that you failed to comply with the demand. In addition, if the court determines that you failed without just cause to comply with this demand within the 15 days allowed, you will be liable for all damages I sustain by reason of such failure and will also forfeit one hundred dollars to me.
“(c) If the judgment has been satisfied, the judgment creditor shall comply with the demand not later than 15 days after actual receipt of the demand.
“(d) If the judgment creditor does not comply with the demand within the time allowed, the person making the demand may apply to the court on noticed motion for an order requiring the judgment creditor to comply with the demand. The notice of motion shall be served on the judgment creditor. Service shall be made personally or by mail. If the court determines that the judgment has been satisfied and that the judgment creditor has not complied with the demand, the court shall either (1) order the judgment creditor to comply with the demand or (2) order the court clerk to enter satisfaction of the judgment.
“(e) If the judgment has been satisfied and the judgment creditor fails without just cause to comply with the demand within the time allowed, the judgment creditor is liable to the person who made the demand for all damages sustained by reason of such failure and shall also forfeit one hundred dollars ($100) to such person. Liability under this subdivision may be determined in the proceedings on the motion pursuant to subdivision (d) or in an action.”