Gogadze v. DTSC CA2/4 ( 2024 )

Filed 9/25/24 Gogadze v. DTSC CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TAMAZI GOGADZE, B333689
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22BBCV00172)
v.
STATE OF CALIFORNIA DEPT. OF
TOXIC SUBSTANCES CONTROL
et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Margaret L. Oldendorf, Anthony J. Mohr,
and Frank M. Tavelman, Judges. Affirmed.
Decker Law, James Decker and Chris Jones for Plaintiff
and Appellant.
Rob Bonta, Attorney General, Jodi L. Cleesattle, Assistant
Attorney General, Donna M. Dean and Mark A. Brown, Deputy
Attorneys General, for Respondents.
INTRODUCTION
Appellant Tamazi Gogadze purchased an industrial
property at a tax sale in 2019. Gogadze found that he could not
get title insurance for the property, in part because the California
Department of Toxic Substances Control (DTSC) held a lien,
imposed in 2013, for costs associated with cleanup of the
property. Gogadze alleged that when he contacted DTSC to clear
the lien, DTSC told him that he was required to enter into an
operation and maintenance agreement relating to soil
contamination and potential groundwater contamination.
Gogadze refused. In December 2020, DTSC issued an order
requiring Gogadze to prepare an operation and maintenance
plan, monitor groundwater, and record certain deed restrictions;
the order also stated that Gogadze would be liable for certain
related costs.
Gogadze sued DTSC and a DTSC employee, Patrick
Movlay, alleging that DTSC’s refusal to clear the lien prevented
Gogadze from obtaining a clear title, which prevented him from
selling the property to several interested buyers. Gogadze also
alleged that Movlay told two interested buyers that any future
owner of the property must enter into an operation and
maintenance agreement with DTSC and pay for groundwater
monitoring, which caused the buyers to pass on the property.
Gogadze alleged a single cause of action for slander of title.
DTSC demurred, arguing that the lien was nullified by the
tax sale as a matter of law, Movlay’s statements were not false,
2
and DTSC and Movlay were immune from liability under a
variety of statutes. The trial court sustained the demurrer
without leave to amend, and Gogadze appealed.
We affirm. The lien is not actionable; it was voided by the
tax sale and DTSC is immune from liability. Movlay’s
statements to potential buyers also cannot support a slander of
title cause of action; his statements accurately reflected DTSC’s
position, and Gogadze’s disagreement with DTSC’s conclusions
does not render Movlay’s statements false. We also find that
leave to amend is not warranted; Gogadze has not met his burden
to demonstrate that the defects in the complaint can be cured by
amendment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Complaint and first amended complaint
On March 21, 2022, Gogadze filed a complaint against
DTSC, Movlay, and two additional individual defendants. The
defendants demurred to the complaint. The trial court sustained
the demurrer with leave to amend. On March 3, 2023, Gogadze
filed his first amended complaint (FAC), the version at issue in
this appeal, against only DTSC and Movlay.
Gogadze alleged that from October 21, 2019 to April 11,
2022 he was the owner of the property at 1102 West Isabel Street
in Burbank. He alleged that he bought the property for $190,000
in cash at a tax sale. Two days later, Gogadze learned that DTSC
had recorded a lien on the property “in connection with the
activities of a prior owner.” Gogadze’s title insurer told Gogadze
that unless the lien was removed, a title insurance policy could
not be issued.
Gogadze alleged that on November 25, 2019, he spoke with
DTSC employee Movlay. Gogadze informed Movlay “that DTSC
3
has a lien against the Property, and said lien claim must be
removed immediately. . . . Instead of removing the lien, however,
DTSC shortly thereafter attempted to coerce [Gogadze] into
entering into an Operations and Maintenance Agreement.
[Gogadze] did not agree.”
Gogadze alleged that he received multiple offers to buy or
lease the property: a cash purchase offer of $1.1 million on
January 21, 2020; an offer to lease the property for $3,042 per
month in March 2020; a purchase offer of $955,000 between April
28 and May 5, 2020; a purchase offer of $700,000 on June 12,
2020; a purchase offer of $875,000 on November 17, 2020; and a
purchase offer of $850,000 on January 28, 2021. Gogadze
asserted that his inability to clear the title of the property
prevented him from accepting any of these offers. Gogadze
asserted that he contacted DTSC on March 11, 2020, for example,
and “DTSC personnel stated . . . that they would only consider
removing the lien if [Gogadze] entered into a 30-year agreement
with DTSC and prepay it hundreds of thousands in advance so
that it could monitor the status of the water in the aqueduct or
aquifer underneath the Property.”
Gogadze alleged that a prospective buyer, Arthur
Aslabekyan, also called DTSC on an unspecified date and spoke
with Movlay. Gogadze alleged, “Defendant Movlay told the
potential buyer that, by law, an existing owner and any future
owners, must enter into an Operation and Maintenance
Agreement with DTSC and must prepay hundreds of thousands
of dollars in advance to the DTSC because the water underneath
the land in the aqueduct or aquifer that spreads throughout the
Burbank, San Fernando Valley, and Glendale areas, was very
bad quality, and in addition, that the Operations and
4
Maintenance Agreement with DTSC was required to be recorded
with the Los Angeles County Recorder. This statement by Mr.
Movlay to Mr. Aslabekyan, however, was false, and Movlay knew
it to be false when he made it. The statement disparaged the
title to [Gogadze’s] Property directly to this potential buyer.
Defendant Movlay made the false and disparaging statement to
the buyer, Mr. Aslabekyan, with actual malice because Mr.
Movlay’s intent was to harm Plaintiff Gogadze and his business
interests because Mr. Gogadze was refusing to enter into an
Agreement with DTSC.” A second prospective buyer also called
Movlay, and “on information and belief,” Movlay conveyed similar
information to the second buyer. Gogadze alleged that “[s]ince
the filing of this action, [Gogadze] was able to sell the Property at
a reduced price.”
Gogadze asserted a single cause of action for slander of
title. Gogadze alleged that DTSC, including through Movlay’s
conversation with Aslabekyan, “willfully, maliciously, and
without privilege or justification published false statements
concerning [Gogadze’s] title and rights to the property.” Gogadze
noted that he was alleging that Molvay committed actual fraud,
and that DTSC was vicariously liable for Molvay’s actions.1 He
sought compensatory damages, punitive damages, and costs.
1 In his original complaint, which also included a single
cause of action for slander of title, Gogadze also alleged liability
based on DTSC’s lien: “the continued failure and refusal by DTSC
. . . to record a release or otherwise furnish a release of its LIEN
recorded on December 10, 2013 . . . was done with malice and
with an intent to improperly coerce Plaintiff into paying DTSC
hundreds of thousands of dollars, and to enter into a long-term
Operations and Maintenance Agreement, which is not required
by law.” This allegation was deleted from the FAC.
5
B. Demurrer
DTSC and Movlay (defendants) filed a demurrer to the
FAC. (Code Civ. Proc. § 430.10, subd. (e).) They also sought
judicial notice of several documents. One document was an
“imminent and substantial endangerment determination” from
DTSC from April 2007. The document stated that the property
housed a metal plating shop that operated between 1959 and
1990. The shop’s waste discharge permit was revoked due to
improper wastewater discharge. From 1990 to 1991, the United
States Environmental Protection Agency completed a waste
removal action. A fire then erupted at the site in November
2001, and a second waste removal action was completed in 2002.
DTSC determined that the site continued to present a risk of
exposure to certain chemicals: “Contamination is detected in soil,
and direct contact with contaminated soil may be possible. There
is high potential that groundwater underneath the Site might be
impacted through the leaching of contaminants through the on-
site soil.”
A September 2011 letter from DTSC to the former property
owner stated, “DTSC concludes that the soil at the Site does not
pose a risk for industrial/commercial use, and a No Further
Action determination for the soil is appropriate, if the use is
limited to commercial or industrial land use. However, the risk is
unacceptable for sensitive land use, such as single family homes,
schools and day care facilities for children. Accordingly, the
implementation of a Land Use Covenant limiting the property to
such usage, and signed by the property owner is required. In
addition an Operation and Maintenance Agreement is required
for the proper maintenance and periodic monitoring of
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groundwater underneath the above subject site which is impacted
with tetrachloroethene and trichloroethene.”
Defendants also sought judicial notice of an “imminent and
substantial endangerment determination and order and remedial
action order” issued by DTSC, dated December 7, 2020. This
order stated that Gogadze had owned the property since January
2020, and therefore he was the “responsible party.” It stated that
in multiple communications between November 2019 and March
2020, “DTSC informed [Gogadze] of the activities left to be
completed at the Site,” but Gogadze “replied that those activities
are not necessary, he will not do them.” The order stated that
testing conducted in 2009 showed soil contamination and the
potential for release into groundwater. DTSC determined that
the “actual and threatened release of hazardous substances at
the Site may present an imminent and substantial endangerment
to the public health or welfare or to the environment,” and
“[r]esponse action is necessary to abate a public nuisance and/or
to protect and preserve the public health.” DTSC stated that
Gogadze “shall immediately begin interim groundwater
monitoring” with samples collected quarterly, “shall sign and
record deed restrictions approved by DTSC” within 60 days,
“shall prepare and submit to DTSC for approval an [operations
and maintenance] plan that includes an implementation
schedule,” and “shall demonstrate to DTSC and maintain
financial assurance for operation and maintenance and
monitoring.” The order also stated that Gogadze was “liable for
all of DTSC’s costs that have been incurred in taking response
actions at the Site (including costs of overseeing response actions
performed by [Gogadze]) and costs to be incurred in the future.”
7
Defendants also sought judicial notice of Gogadze’s verified
complaint for quiet title of the same property, filed on March 17,
2021 against DTSC and several other defendants. In the quiet
title complaint, Gogadze alleged that the DTSC lien was recorded
in 2013 due to “costs and oversight fees incurred for cleanup of
contamination” caused by a former owner. A report from a title
company was attached to the complaint, showing that the lien
was for $245,453.56. In the quiet title complaint, Gogadze stated,
“On January 23, 2020, Defendant DTSC acknowledged and
agreed that California law provides that the purchaser at a tax
sale takes title free of encumbrances of any kind, except for liens
held by a taxing agency,” but that DTSC nevertheless failed to
clear the lien. In the same action, Gogadze also sought to quiet
title with respect to deeds of trust recorded in 1978 and 1981, and
a judgment lien recorded in 2009. Defendants also requested
judicial notice of the December 28, 2021 judgment in the quiet
title action, which did not include DTSC because the lien had
already been released. In Gogadze’s original complaint, but not
in the FAC, Gogadze alleged that DTSC recorded a release of the
lien on May 27, 2021.
Defendants asserted eleven bases for their demurrer.
First, defendants asserted that under the Government Claims
Act, all liability against a public entity such as DTSC must be
based on statute. (See Gov. Code, § 815; Quigley v. Garden Valley
Fire Protection Dist. (2019) 7 Cal.5th 798, 803 [“there is no such
thing as common law tort liability for public entities; a public
entity is not liable for an injury ‘[e]xcept as otherwise provided by
statute’”].) Because slander of title is a common law claim,
defendants could not be liable.
8
Second, defendants asserted that the FAC failed to state
facts to support a claim for slander of title. Relying on jury
instructions in CACI No. 1730, defendants noted that the
elements for a slander of title cause of action require the
defendant to make a statement or take another action that casts
doubt about the plaintiff’s ownership in the property, and that
the statement must be untrue because the plaintiff does in fact
own the property. Defendants asserted that Gogadze’s
allegations did not demonstrate these elements, because none of
defendants’ actions challenged Gogadze’s ownership of the
property. The lien itself could not constitute a false statement
casting doubt about Gogadze’s ownership because the lien was
valid when it was imposed in 2013, and Movlay’s statements did
not question Gogadze’s ownership of the property. In addition,
the quiet title action negated any alleged causation, because
Gogadze “was required to clear other deeds of trust and a lien on
the Site, separate and apart from DTSC’s lien.” Defendants
noted that the quiet title judgment, entered on December 28,
2021, “does not mention the DTSC lien because that lien was
released on May 27, 2021.”
Third, defendants asserted that Movlay’s statements could
not constitute slander of title. Rather, Movlay’s statements
“reflected DTSC environmental compliance requirements for the
Site, and did not question Plaintiff’s legal right to ownership or
involve title to the Site.” Defendants also asserted, “All of
Movlay’s statements accurately reflected DTSC’s environmental
requirements for this Site and those requirements had been
previously recorded in public DTSC decision documents years
before Plaintiff purchased the Site.” Defendants referenced the
documents they submitted for judicial notice, including the
9
documents from 2007 and 2011 addressing the site’s
contaminated soil and groundwater. Defendants noted that the
“environmental requirements were placed on DTSC’s EnviroStor
[website] and were available to anyone, including prospective
purchasers.” Defendants asserted, “Movlay’s statements were
true and did not misrepresent site conditions or the status of the
environmental remediation at the Site.”
Fourth, defendants argued that the litigation privilege
under Civil Code section 47 barred any claim based on the DTSC
lien. Defendants asserted that lien notices authorized by law,
such as the 2013 judgment lien on the property at issue, are
privileged, so any slander of title claim was barred.
Fifth, defendants asserted that Revenue and Taxation Code
section 3712 provides that following a tax sale, “[t]he deed
conveys title to the purchaser free of all encumbrances of any
kind existing before the sale.”2 Thus, Gogadze’s purchase at a tax
sale “automatically required the county assessor to issue title to
the Site free and clear of DTSC’s lien.” Defendants asserted that
they had no duty to remove the DTSC lien.
Sixth, defendants contended that a public employee cannot
be liable to a plaintiff in the absence of a special relationship in
which the employee assumes a duty toward the plaintiff greater
than the duty owed to another member of the general public.
Defendants asserted that the FAC did not allege any facts to
show that Movlay had a special relationship with Gogadze.
Seventh, defendants argued that the quiet title action
demonstrated that the DTSC lien was not the cause of Gogadze’s
inability to sell the property. Rather, third parties had recorded
2 Revenue and Taxation Code section 3712 includes a list of
exceptions, none of which are applicable here.
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interests in the property, and the judgment did not clear those
until after the DTSC lien was removed. Defendants asserted that
these “facts vitiate the theory of the FAC,” and Gogadze could not
prove causation.
Eighth, defendants asserted that to the extent there was
any discretion about what statements to issue about
environmental compliance or the lien, defendants were immune
under Government Code section 820.2, which states, “Except as
otherwise provided by statute, a public employee is not liable for
an injury resulting from his act or omission where the act or
omission was the result of the exercise of the discretion vested in
him, whether or not such discretion be abused.”
Ninth, defendants asserted that to the extent Gogadze’s
claim rested upon environmental restrictions or approvals, any
such actions were immune under Government Code sections
818.4 and 821.1, which govern decisions in issuing permits and
approvals.
Tenth, defendants argued that to the extent Gogadze’s
claims were based on defendants’ “investigation and remediation”
of the property, defendants were immune from liability under
Government Code section 821.6, which provides immunity “for
injury caused by . . . instituting or prosecuting any judicial or
administrative proceeding.”
Eleventh, defendants contended that under Government
Code sections 818.8 and 822.2, they were immune from liability
for any misrepresentations, unless an employee “is guilty of
actual fraud, corruption or actual malice.” Defendants asserted
that although Gogadze stated in the FAC that Movlay acted with
malice, that contention was not supported by any factual
allegations.
11
C. Opposition
In his opposition to the demurrer Gogadze explained that
he “no longer seeks to recover damages resulting from a lien that
had been recorded by DTSC, nor is he alleging that the lien
caused cognizable damage in the form of his resulting inability to
sell the property.” Gogadze stated that defendants had
misconstrued the FAC in the demurrer. One of defendants’
“inaccurate portrayals of the FAC” was “‘[t]hat the theory of the
FAC is that the DTSC lien prevented the sale of the Site until
that lien was removed.’ – again, that is absolutely not the ‘theory’
of the FAC.” He argued that defendants’ various defenses
relating to the lien were “moot.”
Gogadze stated that his “sole cause of action arises from
the nonprivileged actions of” Movlay, and “the only allegation
against DTSC” was “as defendant Movlay’s employer.” Thus, the
“‘Slander of Title’ cause of action is based on the false statements
made about the property by” Movlay to Aslabekyan, including
telling Aslabekyan that any purchaser of the property would need
to enter into an operation and maintenance agreement with
DTSC and pay hundreds of thousands of dollars to DTSC—which
was false. Gogadze noted that he alleged in the FAC that the
false statements were made with actual malice. Gogadze
asserted that “Movlay was motivated to make the false
statements because he was upset that [Gogadze] had refused to
sign an agreement,” so he intended to deceive Aslabekyan with
intent to harm Gogadze’s business to the extent that Gogadze
“would then give in and sign the agreement that was then being
proffered by DTSC.” Gogadze argued that these constituted
“ample facts” to state a claim against a public employee and
against DTSC as the employer.
12
Gogadze asserted that his single cause of action was based
on liability under Government Code section 815.2, which allows a
public entity to be held liable for injury caused by an employee in
the scope of employment. He asserted that defendants’ various
other claims of immunity did not apply. Gogadze also asserted
that defendants defined slander of title too narrowly, because the
cause of action can include “whether the defendant could
reasonably foresee that their conduct might deter a third party
from purchasing or leasing the property.”
Gogadze objected to defendants’ request for judicial notice,
and asserted that defendants could not rely on their judicially
noticed documents to assert that Movlay’s statements were true.
He argued that judicial notice does not allow a court to accept the
truth of the matters stated in a document, nor could the court
determine whether Movlay’s statements in 2020 were true based
on a 2011 document. Gogadze requested leave to amend if the
court sustained the demurrer, but did not propose any specific
amendments.
Defendants filed a reply in support of their demurrer.
D. Ruling on demurrer
There is no reporter’s transcript from the demurrer
hearing. In a written ruling, the trial court sustained the
demurrer without leave to amend. The court granted defendants’
request for judicial notice, noting that it was not judicially
noticing the truth of any factual findings within the documents.
The court found that Gogadze failed to state a cause of
action for slander of title because “Movlay’s statements regarding
Gogadze’s title were not false.” The court noted that slander of
title, by definition, “concerns title to property.” The court
reasoned that Movlay’s alleged statements about a DTSC
13
agreement and environmental monitoring were not about the
title to the property. The court noted that “the property is in fact
encumbered by a recorded deed restriction regarding use of the
property (commercial or industrial only), and an Operations and
Maintenance Agreement, which is publicly available on DTSC’s
‘EnviroStor’ website.” Because Movlay’s statements were not
false, Gogadze had not alleged facts to state a cause of action for
slander of title.
The court also noted that “to the extent slander of title is
based on the recorded judgment lien it is absolutely privileged.”
The court accepted that Gogadze had withdrawn this theory: “the
Court accepts Gogadze’s concession that this argument is moot,
since he is no longer seeking relief based on the judgment lien.”
The court further noted that “the immunities in sections 818.8
and 822.2 do not apply to slander of title.”
The court stated that because “[i]t does not appear that
amendment can cure these defects,” leave to amend was denied.
The court noted that at oral argument, Gogadze requested
permission to amend his complaint to include a cause of action for
trade libel. The court rejected this request, explaining that “a
claim for trade libel still requires that the defendant has made
false statements concerning a plaintiff’s property. As noted,
Gogadze cannot establish the element of falsity.”
The court entered a judgment of dismissal in favor of
defendants. Gogadze timely appealed.
DISCUSSION
Gogadze asserts that the trial court erred by sustaining the
demurrer without leave to amend. He asserts that both the lien
and Movlay’s statements support a cause of action for slander of
title. He contends that in the alternative, he should be allowed to
14
amend the complaint. Defendants assert that the demurrer was
properly sustained, and leave to amend was appropriately
denied.
“The function of a demurrer is to test whether, as a matter
of law, the facts alleged in the complaint state a cause of action
under any legal theory.” (Stiles v. Kia Motors America, Inc.
(2024) 101 Cal.App.5th 913, 917.) “‘In reviewing a judgment of
dismissal after a demurrer is sustained without leave to amend,
we assume the truth of all properly pleaded facts. We examine
the complaint’s factual allegations to determine whether they
state a cause of action on any available legal theory regardless of
the label attached to a cause of action. [Citation.] We do not
assume the truth of contentions, deductions, or conclusions of fact
or law, and may disregard allegations that are contrary to the
law or to a fact that may be judicially noticed.’ [Citation.] We
review de novo a trial court’s ruling on a demurrer and examine
the operative complaint to determine whether it alleges facts
sufficient to state a cause of action under any legal theory.”
(Summerfield v. City of Inglewood (2023) 96 Cal.App.5th 983,
992.)
A. Slander of title
“Slander of title is a false and unprivileged disparagement,
oral or written, of the title to real or personal property.” (5
Witkin, Summary of Cal. Law (11th ed. 2024) Torts, § 747.) “To
state a claim for slander of title, a plaintiff must allege ‘(1) a
publication, (2) which is without privilege or justification,’ (3)
which is false, and (4) which ‘causes direct and immediate
pecuniary loss.’” (Schep v. Capital One, N.A. (2017) 12
Cal.App.5th 1331, 1336.) “If the publication is reasonably
understood to cast doubt upon the existence or extent of another’s
15
interest in land, it is disparaging to the latter’s title.” (Sumner
Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012)
205 Cal.App.4th 999, 1030.)
1. The lien3
Gogadze asserts that “the lien was disparaging because it
prevented Gogadze from obtaining title insurance to the property
. . . and because it clouded title by misrepresenting the extent of
his interest in the land.”
Defendants assert that DTSC cannot be liable for a
common law cause of action such as slander of title. “Under the
Government Claims Act (Gov. Code, § 810 et seq.), there is no
common law tort liability for public entities in California; instead,
such liability must be based on statute.” (Guzman v. County of
Monterey (2009) 46 Cal.4th 887, 897; see also Gov. Code, § 815,
subd. (a) [“Except otherwise provided by statute,” a “public entity
is not liable for an injury, whether such injury arises out of an act
or omission of the public entity or a public employee or any other
person”].) Slander of title is not a statutory claim, it “is a form of
the separate common law tort of disparagement, also sometimes
referred to as injurious falsehood.” (Finch Aerospace Corp. v. City
of San Diego (2017) 8 Cal.App.5th 1248, 1253.) Gogadze does not
3 Gogadze told the court below that he was no longer
pursuing any recovery relating to the lien. Gogadze (and his new
counsel on appeal) now assert that this claim was not waived.
Although a party generally is not permitted to change its position
on appeal or raise new issues not presented for decision in the
trial court, an appellant challenging a general demurrer may
change his or her legal theory on appeal. (Bocanegra v.
Jakubowski (2015) 241 Cal.App.4th 848, 857.) Because the lien
issue has been fully briefed by both parties, we consider it.
16
address this argument in his briefing. We agree that DTSC is
immune from liability under the Government Claims Act.
Moreover, the FAC does not allege facts supporting such a
cause of action as it relates to the lien. Nothing in the record
suggests the lien was invalid when it was first recorded in 2013.
The lien was to recoup costs and oversight fees incurred for
cleanup of contamination caused by the former owner. The lien
was not the basis for any ongoing environmental restrictions on
the property.
The parties agree the lien was rendered invalid by the tax
sale. As noted above, Revenue and Taxation Code section 3712
provides that following a tax sale, “[t]he deed conveys title to the
purchaser free of all encumbrances of any kind existing before
the sale,” subject to exceptions not at issue in this case. Thus, to
the extent that anyone—Gogadze, DTSC, Movlay, Gogadze’s title
insurer, or any potential buyer—believed the lien was valid or
enforceable after the tax sale, that belief was erroneous.
The question then becomes whether a publication, accurate
when it was recorded, can support a claim for slander of title
because later events rendered it invalid. In other words, does
DTSC’s failure to remove the lien after it was invalidated by the
tax sale constitute (1) a publication, (2) without privilege or
justification, (3) which is false for purposes of a slander of title
cause of action? Gogadze cites no support for this proposition, and
we have found none. Gogadze relies on Seeley v. Seymour (1987)
190 Cal.App.3d 844, 857, in which the court stated, “The
recordation of an instrument facially valid but without
underlying merit will, of course, give rise to an action for slander
of title.” But the instrument in that case was always void—it did
not become void due to later events. (Id. at pp. 855-856.) Gogadze
17
also cites Van Horn v. Department of Toxic Substances Control
(2014) 231 Cal.App.4th 1287 (Van Horn), in which a landowner
alleged that the procedure DTSC used to place a lien on her
property for hazardous substance alleviation pursuant to
California’s “Superfund” statute violated her due process rights.
Gogadze cites Van Horn for its statement that such a lien, “which
clouds title, impairs the ability to alienate the property, taints
credit ratings, and reduces the chance of subsequently financing
the property—significantly affects a private property interest.”
(Id. at p. 1297.) Again, the lien in Van Horn did not become
invalid due to later events. Thus, we find no legal support for
Gogadze’s contention that the lien “constituted a continuing
publication” for purposes of a slander of title claim.
Gogadze asserts that DTSC improperly associated him with
the lien after he purchased the property, but he does so only by
conflating the lien with the environmental monitoring
restrictions. For example, Gogadze states in his opening brief
that when he refused to enter into a voluntary operation and
maintenance agreement with DTSC, “DTSC published an order
on its website finding Gogadze liable under the (invalid) lien and
concluding that an agreement was mandatory.” But the
published order Gogadze cites—the 2020 environmental
compliance order—makes no mention of the lien. Rather, it notes
that Gogadze is the “responsible party” because he is the property
owner, and states that Gogadze is required to prepare and submit
a proposed operation and maintenance plan to DTSC. The
document does not connect Gogadze with the lien.
In short, no legal authority supports a finding that for
purposes of a slander of title cause of action, a lien, which was
legal and accurate when recorded, becomes an unprivileged, false
18
publication if later events render it invalid. Gogadze therefore
has not alleged facts sufficient to support a cause of action for
slander of title as it relates to the lien.
2. Movlay’s statements
Gogadze alleged that Movlay told Aslabekyan and another
potential buyer “that, by law, an existing owner and any future
owners, must enter into an Operation and Maintenance
Agreement with DTSC and must prepay hundreds of thousands
of dollars in advance to the DTSC because the water underneath
the land in the aqueduct or aquifer that spreads throughout the
Burbank, San Fernando Valley, and Glendale areas, was very
bad quality, and in addition, that the Operations and
Maintenance Agreement with DTSC was required to be recorded
with the Los Angeles County Recorder.” Slander of title “may be
committed through the use of oral statements.” (Seeley v.
Seymour, supra, 190 Cal.App.3d at p. 858.)
Movlay does not have blanket immunity under the
Government Claims Act. “When it comes to tort suits against
public employees, ‘“‘the rule is liability, immunity is the
exception.’”’” (Freeny v. City of San Buenaventura (2013) 216
Cal.App.4th 1333, 1341.)
The trial court found that Movlay’s statements accurately
reflected DTSC’s position. The trial court stated, “Based on the
judicially noticed documents, including documents evidencing
DTSC’s orders, it is apparent that the property is in fact
encumbered by a recorded deed restriction regarding use of the
property (commercial or industrial only), and an Operations and
Maintenance Agreement, which is publicly available on DTSC’s
‘EnviroStor’ website.”
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Defendants assert the trial court is correct: “Movlay’s
alleged improper statements were true and did not misrepresent
the property’s conditions or the status of the environmental
remediation at the property. Movlay’s statements merely
conveyed the environmental compliance requirements for the
site.” Indeed, the 2011 letter from DTSC to the property’s former
owner stated that a land use covenant was required, which would
limit the use of the property, and an operation and maintenance
agreement was required for groundwater monitoring. The 2020
order to Gogadze stated that groundwater monitoring was
required, Gogadze was required to sign and record deed
restrictions, Gogadze was required to develop an operations and
maintenance plan, and Gogadze was financially liable for DTSC’s
costs and ongoing monitoring. Gogadze admits in his appellate
briefing, “[I]t is uncontested that DTSC demanded Gogadze sign
a Land Use Covenant and create an Operations and Maintenance
Agreement.”
Gogadze argues the trial court erred by judicially noticing
the truth of the matters within the DTSC documents, rather than
judicially noticing only the existence of the documents. (See, e.g.,
Lent v. California Coastal Com. (2021) 62 Cal.App.5th 812, 854
[“‘While we may take judicial notice of . . . official acts of state
agencies [citation], the truth of matters asserted in such
documents is not subject to judicial notice.’”].) We find no error.
The trial court noted that it was taking judicial notice of the
orders issued by DTSC under Evidence Code section 452,
subdivision (c), which allows judicial notice of the “[o]fficial acts
of the legislative, executive, and judicial departments” of any
state. The trial court stated that it was taking judicial notice
“not as to any factual findings contained in the orders themselves
20
but as to the legal effect of the orders.” “Where, as here, judicial
notice is requested of a legally operative document—like a
contract—the court may take notice not only of the fact of the
document and its recording or publication, but also facts that
clearly derive from its legal effect.” (Scott v. JPMorgan Chase
Bank, N.A. (2013) 214 Cal.App.4th 743, 754 [emphasis in
original].)4
It was appropriate to judicially notice that Movlay
accurately conveyed DTSC’s position to the potential buyers.
Gogadze’s disagreement with some of DTSC’s factual findings
does not affect the accuracy of Movlay’s statements. Thus, the
slander of title cause of action in the FAC did not state facts to
support a claim against Movlay in that his statements were not
“false” as they pertained to Gogadze’s interest in the property,
and the statements did not lack “justification.” The demurrer was
appropriately sustained as to the cause of action against Movlay.
B. Leave to amend
Gogadze urges us to “find that leave to amend is
appropriate based on (1) new facts and (2) several new theories.”
Defendants assert that leave to amend should be denied.
4 With his reply brief on appeal, Gogadze for the first time
requests judicial notice of multiple documents from the
EnviroStor website, stating that these additional documents
“demonstrate the . . . lack of notice or adversarial process
regarding any of [Gogadze’s] other supposed legal obligations,
and [defendants’] knowledge that their orders lacked merit.”
These documents are not necessary to the resolution of this case,
and we deny Gogadze’s request for judicial notice. (Cal. Rules of
Court, rule 8.252; Jordache Enterprises, Inc. v. Brobeck, Phleger
& Harrison (1998) 18 Cal.4th 739, 748, fn. 6.)
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“If the demurrer was sustained without leave to amend, we
consider whether there is a ‘reasonable possibility’ that the defect
in the complaint could be cured by amendment. [Citation.] The
burden is on plaintiffs to prove that amendment could cure the
defect.” (King v. CompPartners, Inc. (2018) 5 Cal.5th 1039, 1050.)
“‘The appellant has the burden to identify specific facts showing
the complaint can be amended to state a viable cause of action.
[Citation.] An appellant can meet this burden by identifying new
facts or theories on appeal.” (Roe v. Hesperia Unified School
District (2022) 85 Cal.App.5th 13, 24; see also Code Civ. Proc.,
§ 472c.)
Gogadze’s proposed new facts focus on the validity of the
lien, the validity of DTSC’s findings before Gogadze purchased
the property, DTSC’s findings in the 2020 order, and the process
by which the 2020 order was issued. For example, Gogadze
proposes that he can allege facts such as, “The lien was imposed
unilaterally, and its validity has never been litigated”; “The
statute of limitations on the lien expired years ago and the DTSC
was aware of its expiration”; “DTSC retracted their [sic] demands
for cost recovery” after Gogadze’s counsel pointed out that the
statute of limitations had expired; “DTSC did not afford Gogadze
appropriate hearings to challenge their [sic] determinations on
either the lien or the operation agreement”5; and “The lack of
opportunity to contest the DTSC’s factual or legal findings
constituted a violation of Gogadze’s due process rights.”
Gogadze contends these facts would support a revised cause
of action for slander of title. We disagree for the reasons
5 Although Gogadze references an operation agreement here,
he also asserts that “no current or former owner of the property
has . . . entered into an operation and maintenance agreement.”
22
discussed above: DTSC itself cannot be not liable for a common
law tort under the Government Claims Act, the lien is not
actionable because it was imposed years before Gogadze
purchased the property, and the lien became invalid after the tax
sale. Gogadze’s revised facts say nothing about Movlay’s
involvement. Gogadze’s new alleged facts therefore do not
support a cause of action for slander of title.
Gogadze also asserts that these facts would support causes
of action for trade libel and intentional interference with
prospective economic advantage. Again, however, DTSC cannot
be liable under the Government Claims Act. A public entity may
be held liable for trade libel or intentional interference with
prospective economic advantage if that liability is based on
vicarious liability for the conduct of an employee acting within
the scope of employment. (City of Costa Mesa v. D’Alessio
Investments, LLC (2013) 214 Cal.App.4th 358, 377-378.)
However, a trade libel claim requires the plaintiff to prove that a
defendant’s statement was false (see, e.g., ZF Micro Solutions,
Inc. v. TAT Capital Partners, Ltd. (2022) 82 Cal.App.5th 992,
1002 fn. 5), and an intentional interference with prospective
economic advantage claim requires the plaintiff to demonstrate
“intentionally wrongful acts designed to disrupt” the plaintiff’s
economic relationship with a third party (Roy Allan Slurry Seal,
Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512).
As discussed above, Movlay’s statements were not false or
wrongful; they accurately conveyed DTSC’s position.
Gogadze argues he can also assert causes of action under
42 U.S.C. section 1983 (section 1983) for violations of due process
and for takings. “‘To state a claim under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution and
23
laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color of state
law.’” (Arce v. Childrens Hospital Los Angeles (2012) 211
Cal.App.4th 1455, 1472.) Gogadze states that his “proposed 42
U.S.C. § 1983 claim is predicated on the DTSC’s imposition of the
lien without due process of law.” Gogadze proposes that he can
also assert a takings claim under section 1983 because “DTSC’s
regulatory demands and abuse of procedure in refusing to release
the lien constituted a taking of property without due process of
law,” and “DTSC could not compel Gogadze to enter into an
agreement without affording him just compensation.”
Defendants assert that DTSC cannot be held liable under
section 1983. (See, e.g., McAllister v. Los Angeles Unified School
Dist. (2013) 216 Cal.App.4th 1198, 1207 [“a state, an entity acting
as an ‘arm of the state,’ or a state official sued in his official
capacity may not be considered a ‘person’ who may be liable
under section 1983”].) Gogadze asserts that such an argument
elevates “form over substance.” We agree with defendants that
DTSC, a state agency, cannot be liable under section 1983.6 We
decline to consider the new proposed grounds for liability
asserted for the first time in Gogadze’s reply brief on appeal.
(See, e.g., Save the Agoura Cornell Knoll v. City of Agoura Hills
(2020) 46 Cal.App.5th 665, 679 [“new legal theories raised for the
first time in a reply brief generally will not be considered unless
good cause is shown for the failure to present them earlier”].)
Moreover, as defendants correctly point out, “Gogadze
purchased the Site after it was already subject to environmental
6 Gogadze argues that Van Horn, supra, 231 Cal.App.4th
1287, “establishes that plaintiffs may bring such an action,” but
Van Horn did not involve section 1983.
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restrictions. The Site is no different than when Gogadze
purchased it,” and therefore there has been no taking or inverse
condemnation. (See, e.g., California Building Industry Assn. v.
City of San Jose (2015) 61 Cal.4th 435, 462 [“As a general matter,
so long as a land use regulation does not constitute a physical
taking or deprive a property owner of all viable economic use of
the property, such a restriction does not violate the takings
clause insofar as it governs a property owner's future use of his or
her property”]; Simple Avo Paradise Ranch, LLC v. Southern
California Edison Company (2024) 102 Cal.App.5th 281, 289 [to
state a claim for inverse condemnation, a plaintiff must allege
that a public entity has taken or damaged their property for a
public use].) We agree that Gogadze has failed to demonstrate
that leave to amend is warranted.
DISPOSITION
The judgment is affirmed. Defendants are entitled to
recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, ACTING P. J.
We concur:
MORI, J.
ZUKIN, J.
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