Filed 3/13/13 Glenn v. Eull CA2/5 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

WILLIAM V. GLENN, JR., et al.,
Plaintiffs and Respondents,

v.
CLINTON B. EULL, III,
Defendant and Appellant. B239211
(Los Angeles County Super. Ct. No. YC062020)

APPEAL from a judgment of the Supe rior Court of Los Angeles County. Stuart M. Rice, Judge. Affirmed. Law Offices of Mark C. Fields, Mark C. Fields for Defendant and Appellant. Cohen & Lord, Bruce M. Cohe n, Jonathan F. Golding, Rae Lamothe for Plaintiffs and Respondents.

_______________2 Defendant Clinton Eull appeals the judgm ent entered against him which found that he had wrongfully disparaged the title to the real propert y of plaintiffs William and
Roxanne Glenn. Findi ng no error, we affirm.

FACTUAL AND PROCEDUR AL BACKGROUND In early 2010, the Glenns entered escrow with Dan and Janet Beck to purchase the real property located at 5617 Via del Collado in Torrance. The transaction was scheduled to close escrow on March 31, 2010. On March 17 and 18, 2010, Mr. Eull, who lived next do or to, and uphill from, the Becks at 5615 Via del Collado, de livered to the Becks two letters 1 claiming that his property was currently sustaining damage on account of flooding and vibrations emanating from the Becks' property, and de manding $718,000 in compensation. In response to the letters, the Glenns sought to inspect the damage to the Eull property. Mr. Eull refused to permit an inspection. Th e Glenns therefore filed a complaint seeking declaratory relief and requesting an order to inspect the Eull prop erty, which the court
issued.
As a result of Mr. Eull's claim, the close of the Beck/Glenn escrow was delayed until May 4, 2010. The Becks leased the resi dence to the Glenns during the month of April at a rental of $10,000. The Glenns retained geological and so ils experts to inspect the Eull property pursuant to the court order. Those experts fo und no flooding, no u nderground vibrations, and no damage to the property. Although Mr . Eull later acknowledged that, by the end of March, there was no continuing vibration or flooding issue, he refused to recant his

1 The first letter read in fu ll: "Water from your property is flooding the northwest section of my property locat ed at 5615 Via del Collado cau sing damage. [¶] This is a demand for payment of $718,000 for the da mages." The second letter stated: "In addition to the flooding problem, there are underground vibrations coming from the east side of your property and affecting my pr operty at 5615 Via del Co llado, causing what may amount to additional damages. [¶] In ca se you failed to receive my letter dated March 17, 2010, this is a demand for payment of $718,000 for the damages."3 claim. Consequently, the Glenns amended th eir complaint to stat e causes of action for
intentional interference with contract a nd disparagement of title, and sought both compensatory and punitive damages. Trial was to the court, which found in favo r of the Glenns on all causes of action. The court awarded the Glenns $10,000 in compensatory damages for the interference with contract claim, and $200, 000 in attorney fees as comp ensatory damages and $50,000 in general damages, for the disparagement of title cause of action. The court also found, however, that the Glenns had failed to estab lish the requisites for an award of punitive damages, and refused to award the Glenns an y damages for emotional distress. The court entered judgment for $281,862 .50, plus costs of suit. Mr. Eull timely appealed the judgment.

CONTENTIONS Mr. Eull advances four arguments on this ap peal. First, he claims that the lawsuit is barred by the litigation privile ge. Second, he maintains th at the award of $50,000 in general damages is without legal or eviden tiary support. Third, he contends that irregularities in the proceedings before the trial court require a new trial. And lastly, he argues that the trial court erred in aw arding $200,000 in attorney fees. 2 We consider each
contention in turn.

STANDARD OF REVIEW The parties agree that the standard of re view applicable to this appeal is the substantial evidence test. Thus, we review th e record in the light most favorable to the prevailing party to determine whether there is substantial evidence to support the
conclusions of the factfinder. "'Substantial evidence' is evidence of ponderable legal significance, evidence that is reasonable, cr edible and of solid value. [Citations.]

2 Mr. Eull did not argue, either at trial or on this appeal, that the Glenns' purchase of the property at the price negotiated before Mr. Eull created the "cloud" on title negated any supposed damages flowing from the disparagement of title.4 'Substantial evidence . . . is not synonymous with "any" evidence.' Instead, it is '"'substantial' proof of the esse ntials which the law requires."' [Citations.] The focus is on the quality, rather than th e quantity, of the evidence. . . . [¶] The ultimate test is
whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record. ( Kuhn v. Department of General Services [(1994)] 22 Cal.App.4th 1627, 1633.)" ( Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651-652.)

DISCUSSION
1. Litigation privilege "For well over a century, communications with 'some relation' to judicial proceedings have been absolute ly immune from tort liability by the privilege codified as section 47(b)." 3 ( Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1194, citations omitted.) "Undergirding the immunity conferred by secti on 47(b) is the broadly applicable policy of assuring litigants 'the utmost freedom of access to the cour ts to secure and defend their rights . . . .' ( Albertson v. Raboff [(1956)] 46 Cal.2d [375,] 380.)" ( Rubin v. Green,

supra, 4 Cal.4th at p. 1194.) The privilege a pplies not only to pending actions, but to anticipated lawsuits. ( Ibid. ; see also Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 393.) However, "the mere pot ential or 'bare possibility' that judicial proceedings 'might be institute d' in the future is insuffi cient to invoke the litigation privilege. (Rest.2d Torts, §§ 586-588, com. e, pp. 247-251.) In every case, the privileged
communication must have some relation to an imminent lawsuit or judicial proceeding
which is actually contemplated seriously and in good faith to resolve a dispute, and not simply as a tactical ploy to negotiate a bargain." ( Edwards v. Centex Real Estate Corp

. (1997) 53 Cal.App.4th 15, 36, citing Silberg v. Anderson (1990) 50 Cal.3d 205, 212-214, 218.) "[T]he privilege attaches at that point in time that imminent ac cess to the courts is

3 "A privileged publication or broadcast is one made: [¶ ] . . . [¶] (b ) In any (1) legislative proceeding, (2) judicial proceed ing, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other pr oceeding authorized by law . . . ." (Civ. Code, § 47.)5 seriously proposed by a party in good faith for the purpose of resolving a dispute, and not when a threat of litigation is made merely as a means of obtaining a settlement." ( Edwards v. Centex Real Estate Corp

. , supra, 53 Cal.App.4th at p. 36

. )
Mr. Eull maintains that his letters to hi s neighbor demanding payment of $718,000 for flooding and vibrations aff ecting his property were prelitig ation demand letters sent in good faith and in serious consideration of a possible litigation. The trial court ruled that the litigation privilege did not apply to th ese communications, finding that the letters were sent to induce an unwarranted payoff from Mr. Beck or his realtor out of the pending escrow. We therefore review the record to determine whether substantial evidence supports the trial cour t's conclusion that the letters were not sent in good faith and in serious consideration of litigation.
We conclude that substantial evidence su pports the finding. First, the record is
devoid of evidence that the Beck's property was flooding th e Eull property. Because the Beck property was downhill from the Eull pr operty, surface flooding was a physical impossibility. In addition, Mr. Eull never asked Mr. Beck to repair the damage to his property, had no basis to dema nd $718,000 in "damages," had not consulted a soils expert to assess damage to the property or a cont ractor to obtain a repa ir estimate, had not contacted an attorney to lear n what legal recourse was ava ilable to him, and had refused to permit the Glenns to inspect the property to assess the damage claim (requiring them to file this lawsuit to gain acce ss to the property). Moreover, as a professional real estate investor and a former real estate broker, M r. Eull knew that his le tters would interfere with the pending escrow; indeed, as he testifie d at trial, this was his stated purpose in sending them: "[I]n a perfect world, peop le will pay for stuff to get me to close [escrow]." Based on the fo regoing evidence, the trial c ourt concluded that Mr. Eull's "two letters to Mr. Beck [which he] deposited into escrow were designed to interfere with the Becks' contract to sell the property and to attempt to receive financial remuneration or
other financial benefit from Beck."
While Mr. Eull insists that he "had a good faith belief that the problems he
observed on the Eull Residence were the fau lt of Mr. Beck," the trial court was not6 required to credit that testimony. The court's conclusion that the demand letters were sent not in serious contemplation of litigation, but in an attempt to ex tract money to which Mr. Eull was not entitled from the parties to a real estate transaction, was based on substantial evidence, including its assessme nt of Mr. Eull's credibility. Thus, the litigation privilege does not bar this lawsuit.

2. General damages award
The trial court awarded the Glenns $50,000 in general damages on their disparagement of title cause of action. As the trial court noted, these damages were awarded "not for emotional distress, which ar e prohibited, but for time and inconvenience spent in attempting to take th e actions necessary to clear th e cloud on the title." Mr. Eull
maintains that there is no le gal basis for this award. "In an action for wrongful disparagemen t of title, a plaintiff may recover (1) the expense of legal proceedings necessary to re move the doubt cast by the disparagement, (2) financial loss resulting from the impairme nt of vendibility of the property, and (3) general damages for the time and inconvenience suffered by the plain tiff in removing the doubt cast upon the property." ( Seeley v. Seymour (1987) 190 Cal.App.3d 844, 865, fn. omitted.) It has been acknowledged that arri ving at a dollar figure for the inconvenience and time suffered by the plaintiff in removing th e cloud on title is not a precise practice, however, "their character is such that the trial judge could call on his general knowledge
of their amount. . . . 'One whose wron gful conduct has rendered difficult the ascertainment of the damages cannot escape liability because the damages could not be measured with exactness.'" ( Wright v. Rogers (1959) 172 Cal.A pp.2d 349, 366-367, citations omitted.) Dr. Glenn testified that, during the 68 w eeks between the time that Mr. Eull sent the letters and the trial of this action, he spent approximately 20 hours a week attending to this matter. In addition to the time requi red to address the matt er in connection with
the close of escrow and to consult with his attorneys in the prosec ution of the lawsuit, Dr. Glenn attended all of the depositions. In determining the amount of general damages,7 the trial court considered the amount of tim e incurred by the Glenns, the disruption in their personal and professional lives and the $500 an hour rate Dr. Glenn charges as an expert witness. In awarding $50,000 in general damages, the court compensated Dr. Glenn at the rate of $37 an hour for th e time he spent removing the doubt cast by the disparagement. Substantial evidence s upports the award of general damages.

3. Irregularities in the proceedings Mr. Eull cites five "irregularities" in the trial proceedings which he claims cumulatively require a new trial. These include: (1) oppo sing counsel's reference to Mr. Eull's religious clothing; and the trial c ourt's actions in (2) refusing to permit an opening statement; (3) prohibitin g Mr. Eull from calling a material witness in his case in chief; (4) considering settlement discussions a nd Mr. Eull's refusal to sign a release; and (5) finding unreasonable Mr. Eull's refusal to permit inspection of his property without a
court order. We conclude that none of the cited actions c onstitutes error, and thus there was no cumulative error which requires a new trial.

a. Comments on Mr. Eull's clerical attire During his closing argument, the Glenns' counsel stated: "The court could not help but notice that Mr. Eull dressed as a prie st during much of this trial. Perhaps the
Court also noted that he didn't dress in clerical garb when his wife was in the courtroom.
Is that because she had never seen him dresse d as a priest? I would venture to guess so. Again, your honor, calculation." Mr. Eull ar gues that after being shocked and insulted by the accusation that he was pretendi ng to be a priest in order to manipulate the trial court, while hiding his costume when his wife was present, he was required to present his own closing argument. He concludes, "Such conduct should not be condoned, and is egregious enough to justify by itself a new trial." We do not agree. Counsel's comments regarding Mr. Eull's at tire were made in the context of the argument that Mr. Eull's unwarranted demands on the eve of the close of escrow were calculating and manipulative, a nd supported a claim for punitive damages. The fact that Mr. Eull, a professional real estate investor who was also an ordained minister, wore8 clerical garb at the trial of a real estate ma tter, and that he did so on some occasions but not others, raised questions ab out the motives for his sartor ical choices. (See, e.g., La
Rocca v. Lane (1975) 37 N.Y.2d 575, 583 [religious attire worn by attorney had potential to sway jurors' view of cred ibility in an improper manner].) Plaintiffs' counsel offered
the conclusions he inferred from these unusua l facts—that Mr. Eull was trying to bolster his credibility by presenting himself as a man with a sacred calling. Counsel's remarks
were a fair comment on the ev idence. Moreover, the trial c ourt observed Mr. Eull's attire throughout the proceedings, and no do ubt came to its own conclusions.
b. No opening statements permitted Mr. Eull complains that the trial court denied him the right to give an opening
statement in a trial to the court. He notes that Code of Civil Procedure section 607 provides for opening statements in jury tria ls, and that section 631.7 of the same code
indicates that the same order of trial is to be followed in a bench trial. He concludes that he "should have been allowed to make an op ening statement, and it was an irregularity in the proceedings, deviating from express statutor y law, for the court to have not afforded this right" to him. "From their creation by article VI, se ction 1 of the California Constitution,
California courts received br oad inherent power 'not confined by or dependent on statutes.' [Citations.] Th is inherent power includes 'f undamental inherent equity, supervisory, and administrative powers, as we ll as inherent power to control litigation.' [Citation.]" ( Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 758.) In this case, the trial court expressl y determined that openi ng statements were not necessary, and offered the partie s the opportunity to file trial briefs at any time. The purpose of an opening st atement is to "prepare the minds of the jury to follow
the evidence and to more read ily discern its materiality, force, and effect." ( People v.
Green (1956) 47 Cal.2d 209, 215.) "The purpos e of the opening stat ement is to inform the jury in a general way of th e nature of the action and defe nse, to advise them of the facts relied on by the party to make up his right of action or defense, to define the nature of the questions involved, and advise them of the issues to be tried and the facts intended9 to be proved, so as to enab le them to understand the case to be tried; and the opening statement is not for the purpose of discussing questions of law." ( Williams v. Goodman (1963) 214 Cal.App.2d 856, 869.) None of thes e purposes is relevant to a bench trial. Indeed, in this case, the trial court had acted as the parties' settleme nt judge. In that capacity, the court met on several occasions ov er three court days with both parties, spoke with them exte nsively about the lawsuit and decided motions in limine. Consequently, the court was well aware of the na ture of the action and defense, the issues to be tried and the facts intended to be prov ed. Mr. Eull cannot have been prejudiced by his inability to make an unne cessary opening statement.

c. Mr. Eull not permitted to call Dr. Glenn in his case-in-chief Mr. Eull complains that "the trial court ru led that Mr. Eull could not call Mr. Beck
as a witness in his case in chie f," citing as evidence of this ruling the Clerk's Transcript at pages 883 and 884. Those page s of the Clerk's Transcript contain neither a transcription of the judge's ruling from the bench nor a mi nute order documenting that ruling. Rather, they contain pages 5 and 6 of a declaration Mr. Eull filed in connection with his motion
for a new trial. The declaration states th at, "[a]fter the conclusion of Mr. Beck's testimony in plaintiffs' case in chief, the cour t, over my objection, dismissed Mr. Beck as a witness, with the result being that I was not allowed to call him as a witness in my case in chief." This court's review of the Repo rter's Transcript of Proceedings reveals no request on the part of Mr. Eu ll to call Mr. Beck as a witne ss in his case-in-chief, and no refusal by the trial court to do so. Moreover, the Reporter's Transcript indicates that the
trial court excused Mr. Beck as a witne ss following the testimony he gave on crossexamination by Mr. Eull during the Glenns' case-in-chief. Contrary to Mr. Eull's statement in his declaration, he did not obje ct to the trial court excusing Mr. Beck from the proceedings. In short, there is no eviden ce that Mr. Eull attempted to call Mr. Beck as a witness during his case-in-chief, much less that such an attempt was thwarted by the trial court. Thus, there is no trial c ourt ruling subject to review on appeal.10 d. Court's consideration of settlement discussions
Mr. Eull asserts that the trial court im properly considered settlement discussions between the parties in reaching its decision. Specifically, after Mr. Eull acknowledged that the flooding and vibrations had ceased at some point in March 2010, the Glenns requested that Mr. Eull sign a re cordable covenant (which Mr. Eull refers to as a release) to remove the doubt cast on title by his prior cl aims of damage and end the litigation. A copy of the proposed release was admitted into evid ence as Exhibit 61. In announcing its tentative decision, the trial court stated, "Mr. Eull's assertion that he did not sign any of the contemplated versions of the release[] because the language was overbroad is not accepted by the Court. Defendant Eull never pr oposed language of his own. The issue was not resolved at any time, which required th e Glenns to proceed w ith this litigation." Citing Evidence Code sections 1152, subdivision (a) and 1 154, Mr. Eull maintains that the discussions between the parties regard ing a release of claims were privileged settlement negotiations and shoul d not have been considered by the trial court for any purpose. The argument is unavailing. If a party fails to object to the consider ation of evidence which may be covered under the settlement privilege of Evidence C ode section 1152, or if a party voluntarily
introduces the evidence on his ow n, the privilege is waived. ( Regents of University of California v. Sumner (1996) 42 Cal.App.4th 1209, 12 13.) Mr. Eull did not object to testimony regarding the efforts of the Glenns to have Mr. Eull withdraw his claims. Neither did Mr. Eull object to testimony of the Glenns attorney, Mr. Cohen, to the effect that Mr. Eull repeatedly stated that he woul d execute some form of a release, but that none was ever signed. Indeed, Mr. Eull refere nced Exhibit 61 in his cross-examination of Mr. Cohen, and discussed the re lease himself while testifying on direct examination. Thus, Mr. Eull waived the settlement priv ilege of Evidence Code section 1152.

e. Court's determination that Mr. Eull's refusal to permit inspection of his property damage was unreasonable In announcing its tentative decision in court, the trial court remarked that
"Mr. Eull's refusal to allow th e Glenns and their representativ es and experts to inspect the11 property without a court order was not reasona ble, in light of the surprise allegation which he had raised at the sensitive point of the escrow." Mr. Eull argues: "The impropriety of this finding is grounded in th e fact that Mr. Eull had an inalienable right
under both the United States Constitution, and the California Constitution, to be protected from any unreasonable search or inspection of his property without due process of law."
The Glenns sued Mr. Eull for slander or disparagement of title. "[S]lander of title is an injury to real property." ( Coley v. Hecker (1928) 206 Cal. 22, 26.) Slander of title "occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and caus es pecuniary loss. [Citation.]" ( Truck Ins. Exchange
v. Bennett (1997) 53 Cal.App.4th 75, 84.) The fa lse statement must be "maliciously made with the intent to defame." ( Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263.) Thus, in order to prove their case, the Glenns were required to establish that Mr. Eull's damage claim was not made in good faith. Among the evidence which the Glenns re lied on to prove Mr. Eull's bad faith was the fact that the damage claim was made days before escrow was to close, even though
Mr. Eull claimed to have discovered the dama ge earlier in the year, and that Mr. Eull refused to permit access to the pr operty to substantiate the claim. The court was entitled
to infer from this refusal of access that Mr. Eull knew that an inspection of his property would not reveal $718,000 in damages, and that by forci ng the Glenns to retain an attorney and go to court to obtain an order perm itting them access – a course of conduct which would jeopardize the timely close of es crow – he was attemp ting to persuade one or more of the participants in the purchase and sale to offer him money so that the escrow could close as scheduled. This argument, an d the trial court's acceptance of it, are entirely reasonable. The rights protected by the Fourth Amendment are not implicated in

any way.

4. Award of Attorney Fees
The evidence introduced at trial established that the Glenns incurred $464,229 in attorney fees and $48,842 in expert fees. The court awarded th e Glenns $200,000 in12 attorney fees and $21,863 in expert fees as damages in removing the cloud on the title to their property. Mr. Eull challenges this award, arguing that because the Glenns' complaint contained four causes of action (two for declaratory relief and one for tortious interference with contract, in addition to the disparagement of title claim) the trial court was required to apportion the attorney fees so that only those fees attributable to the wrongful disparagement claim would be reco vered by the Glenns. The argument is
without merit. Regardless of the number of causes of ac tion in the complaint, the Glenns had a single purpose in prosecuting this lawsu it: to remove the cloud that Mr. Eull's unwarranted demands had placed on their title. Indeed, the two causes of action for declaratory relief sought a declaration th at "no waters from the Beck Property are flooding and/or causing damage to the Eull Property" and "no vibrations from the Beck Property are causing any damage to the Eull Pr operty." Those two ca uses of action were not separate and distinct from the disparagem ent of title claim, but a reiteration of it. "Attorney's fees need not be apportioned when incurred for repr esentation on an issue
common to both a cause of action in which fees are proper and one in which they are not allowed." ( Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 129-130.) Thus, there was no need to apportion attorney fees among these three causes of action. As the trial court noted, the remaining cause of action fo r intentional interference with contract was based substantially on the same facts, circumst ances and conduct as the other three causes of action. Consequently, the court declined to apportion fees. That ruling is reviewed for an abuse of discretion. ( Maxim Crane Works, L.P. v. Tilbury Constructors (2012) 208 Cal.App.4th 286, 297-298.) "The court abus es its discretion when ever it exceeds the bounds of reason, all of the circumst ances before it being considered." ( Id. at p. 297.)13 We conclude that the trial court acted well within its discretion in concluding that the attorney fees incurred by the Glenns were not subject to apportionment.

DISPOSITION The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ARMSTRONG, Acting P. J.

We concur:

MOSK, J.

KRIEGLER, J.