California Riviera v. Hackel
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CALIFORNIA RIVIERA HOMEOWNERS ASSOCIATION v. HACKEL
(1996) 48 Cal.App.4th 1886

Kane & O'Brien, Kevin P. Kane and Mark A. O'Brien, Los Angeles, for Petitioners. No appearance for Respondent. Law Offices of Ronald M. Katzman and Ronald M. Katzman, Sherman Oaks, for Real Party in Interest.

We issued an order to show cause in this matter to address the question of whether recordation of a notice of violation that is authorized by covenants, conditions and restrictions (CC & R's) comes within the litigation privilege of Civil Code section 47, subdivision (b).   We hold that it does.

BACKGROUND

Stuart Hackel owns a house in the Pacific Palisades area of Los Angeles which is arguably subject to CC & R's recorded by predecessors of the California Riviera Homeowners Association (“California Riviera”) and later modified by California Riviera. 1 Article IV, section 10 of the CC & R's prohibits a structure from being erected or maintained closer than 10 feet from the side property lines of each parcel.   It further provides that, in the event of breach, California Riviera may record a notice of violation with the county recorder of Los Angeles County, and that it may not initiate any litigation unless such a notice has been recorded. 2

In 1991, Hackel completed a substantial remodel of his house.   He was later informed by a realtor that California Riviera had recorded a “Notice of Violation of Restrictions” with respect to the property.   The notice stated that Hackel had failed to comply with the 10–foot set-back requirement of the CC & R's.

On December 10, 1992, Hackel filed an action against California Riviera and two of its officers for slander of title, breach of fiduciary duty, declaratory relief, and injunctive relief.   Hackel's complaint alleges, in essence, that the set-back requirement of the CC & R's is unenforceable because the right of enforcement was not transferred to California Riviera from its predecessors in the early 1940's, and that long-standing violations of the CC & R's, as well as inconsistent enforcement by California Riviera, have rendered the set-back requirement a nullity.   The complaint further alleges that California Riviera exceeded its authority when it modified the CC & R's in the early 1950's by adding article IV, section 10, thereby creating the notice of violation procedure.   Finally, Hackel alleges that, irrespective of whether the set-back requirement may be enforced or whether the notice of violation procedure is beyond California Riviera's authority, a notice of violation is not a recordable document as a matter of law.

In August 1993, Hackel filed a motion in respondent superior court requesting among other things that the notice of violation be expunged on the ground that it is not a recordable document.   The motion was granted.   California Riviera thereafter petitioned this court for a writ of mandate to compel respondent court to reverse its order.   The petition was granted in California Riviera Homeowners Association v. Superior Court (Hackel ), No. B080001, filed August 30, 1995.   In that opinion, we held that recordation of a notice of violation was not authorized by statute, but that California Riviera's notice could nonetheless be recorded because recordation was specifically authorized by the CC & R's. (At pp. 8, 12.)

While California Riviera's petition for a writ of mandate was pending in this court, it filed a motion for summary adjudication of issues in respondent court, asserting among other things the validity of its affirmative defense that the notice of violation was a publication within the meaning of the litigation privilege of Civil Code section 47, subdivision (b).   The motion was denied on the ground that the issue of whether the notice of violation was recordable had not yet been decided.

Following finality of proceedings on the prior petition for a writ of mandate, California Riviera renewed its motion for summary adjudication of issues.   The motion was again denied, this time on the ground that the notice of violation was not privileged because it was not “authorized by law.”   California Riviera again petitioned for a writ of mandate seeking an order to compel respondent court to change its ruling.   We issued an order to show cause on the petition to enable us to address a single issue, i.e., whether recordation of California Riviera's notice of violation comes within the litigation privilege. 3  Following briefing and oral argument, we find respondent court's ruling to be in error.

DISCUSSION

 With the exception of a claim for malicious prosecution, an absolute privilege exists as to any publication or communication made in a judicial proceeding or other proceeding authorized by law, even if the publication was made with malice or intent to do harm.  (Civ.Code, § 47, subd. (b);  Silberg v. Anderson (1990) 50 Cal.3d 205, 215–216, 266 Cal.Rptr. 638, 786 P.2d 365.)   This “litigation privilege” “applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved.  [Citations.]”  (Id. at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365;  see Moore v. Conliffe (1994) 7 Cal.4th 634, 641, 29 Cal.Rptr.2d 152, 871 P.2d 204;  Albertson v. Raboff (1956) 46 Cal.2d 375, 380–381, 295 P.2d 405.)  “[T]he privilege to defame in the course of judicial proceedings is not limited to statements during trial but can extend, notwithstanding the phrasing of the statute, to steps taken prior thereto.  [Citations.]”  (Lerette v. Dean Witter Organization, Inc. (1976) 60 Cal.App.3d 573, 577, 131 Cal.Rptr. 592.)  “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings;  (2) by litigants or other participants authorized by law;  (3) to achieve the objects of the litigation;  and (4) that [has] some connection or logical relation to the action.  [Citations.]”  (Silberg v. Anderson, supra, 50 Cal.3d at p. 212, 266 Cal.Rptr. 638, 786 P.2d 365.)

By analogy to several cases in which prelitigation communications were held to come within the litigation privilege, California Riviera asserts that the privilege is also applicable here.   We agree.   For example, in Moore v. Conliffe, supra, 7 Cal.4th 634, 643, 29 Cal.Rptr.2d 152, 871 P.2d 204, the Supreme Court held that the litigation privilege applied to statements made in connection with a private contractual arbitration, reasoning that such a proceeding “is designed to serve a function analogous to—and typically to eliminate the need to resort to—the court system.”   In Lerette v. Dean Witter Organization, Inc., supra, 60 Cal.App.3d at page 578, 131 Cal.Rptr. 592, the litigation privilege was applied to a letter demanding settlement of a financial dispute on the ground that the letter was sent as a matter “preliminary to a judicial proceeding.”   In Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1, 25, 105 Cal.Rptr. 414, the privilege was applied to a mechanic's lien, the recordation of which was “clearly authorized by law” in conjunction with an action to enforce the lien.

Finally, in Wilton v. Mountain Wood Homeowners Assn. (1993) 18 Cal.App.4th 565, 22 Cal.Rptr.2d 471, a condominium homeowners association recorded allegedly fraudulent assessment liens against the owner of one of its condominium owners.   The owner sued the association, which raised the litigation privilege as a defense.   As explained by the Wilton court, “Condominium homeowners associations must assess fees on the individual owners in order to maintain the complexes.  (Civ.Code, § 1366, subd. (a).)  When an owner defaults, the association may file a lien on the owner's interest for the amount of the fees.  (Civ.Code, § 1367, subd. (b).)  If the default is not corrected, the association may pursue any remedy permitted by law, including judicial foreclosure or foreclosure by private power of sale.  (Civ.Code, § 1367, subd. (d).)”  4  (18 Cal.App.4th at p. 568, 22 Cal.Rptr.2d 471.)

The Wilton court found that the homeowners association was entitled to the protection of the litigation privilege.   Referring to the mechanic's lien discussed in Frank Pisano & Associates v. Taggart, supra, 29 Cal.App.3d 1, 105 Cal.Rptr. 414, Wilton reasoned that both homeowners association's assessment liens and mechanic's liens are required by statute to be filed as a first step in foreclosure actions to remedy defaults, and therefore meet the traditional litigation privilege test reiterated in Silberg v. Anderson, supra, 50 Cal.3d at page 212, 266 Cal.Rptr. 638, 786 P.2d 365, of being “required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation.”  (Wilton v. Mountain Wood Homeowners Assn., supra, 18 Cal.App.4th at p. 569, 22 Cal.Rptr.2d 471.)

 Relying on this well-established definition of the privilege, respondent court rejected California Riviera's argument for application of the litigation privilege on the ground that, because no statute authorized recordation of a notice of violation, such recordation was not “permitted by law.”   This interpretation of what constitutes “law” is too narrow.  (Cf. Hambrecht & Quist Venture Partners v. American Medical Internat., Inc. (1995) 38 Cal.App.4th 1532, 1540, 1542, 46 Cal.Rptr.2d 33.)   The broad range of what “law” encompasses includes “ ‘the rules of action or conduct duly prescribed by controlling authority․’  [Citation.]”   (Id. at p. 1540, 46 Cal.Rptr.2d 33.)   Here, such authority may be found in article IV, section 10 of the CC & R's, which is enforceable under the law of equitable servitudes. 5 We think that the court in Wilton v. Mountain Wood Homeowners Assn., supra, 18 Cal.App.4th 565, 22 Cal.Rptr.2d 471, put undue emphasis on the existence of statutory authorization for recordation of a document.   Thus, for the purpose of the litigation privilege, we find the CC & R's authorization to record a notice of violation is part of the “law.”

 California Riviera's notice of violation also qualifies as having been recorded “in the course of a judicial proceeding.”   Under that part of the “law” embodied in article IV, section 10 of the CC & R's, California Riviera is prohibited from commencing any legal action against a homeowner for violation of the CC & R's until it records a notice of violation with the county recorder and serves the notice on the homeowner by registered mail.   This puts the notice of violation in the same relationship to a “judicial proceeding” as other prelitigation publications which have been found to qualify for the privilege.

We are aware of Hackel's argument that the notice of violation procedure should not qualify for the privilege because it was designed for the express purpose of inducing the homeowner to remedy the alleged violation in order to remove the cloud that the notice places on title.   But the avoidance of litigation is the precise purpose for the type of demand letter that was found to come within the litigation privilege in Lerette v. Dean Witter Organization, Inc., supra, 60 Cal.App.3d 573, 131 Cal.Rptr. 592.   And the same missive of “comply-or-suffer-a-cloud-on-title,” published in this case via the county recorder, was found to be a privileged publication in Frank Pisano & Associates v. Taggart, supra, 29 Cal.App.3d 1, 105 Cal.Rptr. 414, and Wilton v. Mountain Wood Homeowners Assn., supra, 18 Cal.App.4th 565, 22 Cal.Rptr.2d 471.

Moreover, the privilege may apply even if the publisher ultimately resorts to an extrajudicial remedy.   For example, in Wilton the homeowner argued that the litigation privilege should not apply inasmuch as the association had the statutory power to foreclose either judicially or by private sale (i.e., without litigation).   This argument was rejected on the ground that it was unacceptable to make the privilege “hinge upon factual inquiries into which remedy associations intended to use [because this] might lead associations to resort to judicial foreclosure in every case simply to avoid the risk of tort liability.”  (Id. at p. 570, 22 Cal.Rptr.2d 471.)

 We endorse the pragmatic view espoused in Wilton.   As applied here, the litigation privilege does not require either the existence of a judicial proceeding or the likelihood that such a proceeding is imminent.   California Riviera is entitled to its protection.

DISPOSITION

Let a peremptory writ of mandate issue commanding respondent superior court to vacate its order denying California Riviera's motion for summary adjudication of issues on the ground the notice of violation recorded by California Riviera does not come within the litigation privilege of Civil Code section 47, subdivision (b), and to reconsider the motion and enter a new and different order which recognizes that recordation of the notice of violation comes within the litigation privilege.   In all other respects, California Riviera's petition for writ of mandate is denied.   The parties are to bear their own costs on this writ petition.

FOOTNOTES

1.   For purposes of this opinion we assume, but do not hold, that Hackel is bound by the CC & R's.

2.   Article IV, section 10 provides:  “Notice of any breach or violation of any of the [CC & R's] hereby established, ․ shall, within a reasonable time after the occurrence of such breach, violation or failure to comply, be executed by the owner of the reversionary rights herein provided for, or by the Art Jury, ․ and recorded in the office of the County Recorder of Los Angeles County;  and a copy of such notice, ․ shall be mailed by registered mail to the person, firm or corporation responsible for such breach of violation of, or failure to comply with, any of said [CC & R's]. Until such notice has been recorded and mailed by registered mail as in this paragraph provided, neither the owner of the reversionary rights, nor the Art Jury ․ shall have the right to commence any action against any person, firm or corporation responsible for any breach or violation of any of said [CC & R's] or for failure to comply therewith.”

3.   This issue was phrased in different ways in the pleadings before respondent court and before this court.   We characterize the issue as one emanating from California Riviera's request for summary adjudication on its litigation privilege affirmative defense.  (See Code Civ. Proc., § 437c, subd. (f)(1).)

4.   These statutes are part of the Common Interest Development Act (Civ.Code, § 1350 et seq.) which by definition does not apply to California Riviera.

5.   “Under the law of equitable servitudes, courts may enforce promises about the use of land even though the person who made the promise has transferred the land to another.  [Citation.]  ․ The doctrine is useful chiefly to enforce uniform building restrictions under a general plan for an entire tract of land or for a subdivision.  [Citation.]  ․ [¶] [E]quitable servitudes permit courts to enforce promises restricting land use when there is no privity of contract between the party seeking to enforce the promise and the party resisting enforcement.   Like any promise given in exchange for consideration, an agreement to refrain from a particular use of land is subject to contract principles, under which courts try ‘to effectuate the legitimate desires of the covenanting parties.’  [Citation.]”  (Nahrstedt v. Lakeside Village Condominium Association (1994) 8 Cal.4th at pp. 379–381, 33 Cal.Rptr.2d 63, 878 P.2d 1275, citations omitted;  see also 7 Miller & Starr, Current Law of Cal. Real Estate (2d ed.1989) § 22:1, pp. 520–524.)

MASTERSON, Associate Justice.

SPENCER, P.J., and MIRIAM A. VOGEL, J., concur.

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