Wick v. Mattison

DRAPER, P. J. This action was filed in Humboldt County. One defendant moved for change of venue to Los Angeles County, which is the residence of all defendants. The motion was denied, and the moving party appeals. The sole question is whether the action is one for “injuries to real property” (Code Civ. Proc., § 392) and thus a “local action” to be retained in Humboldt County, where the real property involved lies.

The complaint alleges two causes of action: The first is entitled ‘ ‘ Slander of Title. ’ ’ It alleges that: plaintiff acquired title to the land March 6, 1956, by trustee’s deed under power of sale contained in a trust deed; on September 14, 1956, defendants filed, in Humboldt County, an action seeking to set aside the trustee’s sale on the ground that there had been no default by them under the trust deed; thereafter defendants recorded notice of lis pendens; in fact there was default in the payments required under the deed of trust; when that action came on for trial defendants (plaintiffs therein) failed to appear and judgment was for plaintiff in this action. Damages are alleged to consist of depreciation in value of the land during pendency of the earlier action and costs of defending that action, including attorneys’ fees. The second cause of action is headed “Malicious Prosecution,” incorporates the allegations of the first; and alleges that the earlier action was brought without probable cause. Each cause of action alleges malice and seeks punitive, as well as compensatory, damages.

The term “injuries to real property” as used in section 392 is not limited to physical injury to or interference with the land, but includes slander of title (Coley v. Hecker, 206 Cal. 22, 27-28 [272 P.2d 1045]). Appellant attempts to distinguish Coley on the ground that there an action to quiet title was included with the claim for slander of title, whereas here title already has been quieted (Perkins v. Winder, 123 Cal.App. 467 [11 P.2d 394]). While Perkins does contain some language to support this argument, it is but dictum. In fact, a transitory cause of action, separately stated, was joined in Perkins with the action for slander of title. Under the established rule, such a joinder defeats the right of a plaintiff to [610]retain the action in the county where the land lies (Bybee v. Fairchild, 75 Cal.App.2d 35, 43 [170 P.2d 54]) and no more than that is decided by Perkins. Coley v. Hecker is recognized as establishing that an action for slander of title is within section 392 (Bybee v. Fairchild, supra, at p. 41).