In The Unpublished Case, $784,285.78 In Fees Were Awarded As Damages By The Lower Court, A Determination Affirmed On Appeal.
In Burlingame Investment Corp. v. Kwai, Case No. A144944 (1st Dist., Div. 2 May 18, 2018) (unpublished), plaintiffs won a slander of title cause of action against defendants, with the trial judge awarding defendants $784,285.78 in damages for the attorney’s fees work of two law firms to cure the harm caused by defendants’ injurious disparagements. The appellate court affirmed.
This decision reminds us that litigation expenses alone, with no other damages, are available as special damages in slander of title actions, where the fees were incurred to cure the harm caused by injurious disparagements. (Rest.2d Torts, § 633, Comments a, k; Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC, 205 Cal.App.4th 999, 1030, 1032 (2012).) Although fees cannot be awarded for pursuit of other general damages in a slander of title lawsuit, they can be awarded for removing the doubt cast by defendants’ actions and can be awarded where they overlap with fees for general damages where the issues are inextricably intertwined (such that no apportionment is required).
Interestingly enough, the 1/2 DCA panel in Kwai decided that, while the general rule was that litigation expenses were awardable in situations involving land or recorded instruments, the reasoning in the cases also justified an award of fees as special damages in the situation before it involving defendants filing disparaging corporate documents with two government entities. Given that plaintiff had to counteract these publications by way of litigation, it was inconsequential that neither land nor recorded instruments were involved under the unusual circumstances of the case it was deciding.