Slander of Title & Litigation Privilege
California’s statutory litigation privilege protects a surveyor who recorded an erroneous map from an action for slander of title. Butler v. McCain and Associates, #C074654 (Cal. Ct. App., 3rd Dist. April 27, 2016).
In a long-running boundary dispute, Owner hired McCain to survey the boundary between Owner’s land and Butler’s land. McCain performed the survey, produced a map and submitted it for recording. Owner then commenced an action to quiet title to the disputed area. After the survey turned out to be erroneous, Butler sued McCain for slander of title. McCain claimed an absolute privilege based on Cal. Civil Code §47(b).
Butler alleged the erroneous map was the “causation and central element that prompted [Owner] to file the suit.” The Court held this allegation an admission that “the record of survey was made in connection with litigation that was ‘contemplated in good faith and under serious consideration.’” Because the litigation privilege “encompasses … statements made prior to the filing of a lawsuit, whether in preparation for anticipated litigation or to investigate the feasibility of filing a lawsuit,” the statutory provision precluded the slander of title claim.
Because the privilege applied, the Court did not consider McCain’s intent in recording the erroneous map. In response to a public policy argument by Butler, the Court relied on a line of cases in which the litigation privilege was used to insulate expert witnesses who were alleged to have been negligent when fulfilling their engagements. Thus, the message is clear that litigation experts enjoy broad protection from third-party attack regardless of the nature of the claimed injury.