Opinion

Michael Smith and Gordon Phillips (hereafter Smith) appeal from a judgment of dismissal after the trial court sustained without leave to amend Commonwealth Land Title Insurance Company’s demurrer to Smith’s third amended complaint.

When reviewing a successful demurrer, we accept as true all well-pleaded allegations, however odd or resistant to proof. (Argonaut Insurance Co. v. Superior Court (1985) 164 Cal.App.3d 320, 323 [ 210 Cal.Rptr. 417 ].) We must see whether the alleged facts provide a legitimate basis for relief. The complaint’s relevant allegations are these:

Smith suggests that the facts alleged in his complaint reveal a cause of action for slander of title. Commonwealth objects, citing the rule that new theories may not be raised for the first time on appeal. (Bogacki v. Board of Supervisors (1971) 5 Cal.3d 771, 780 [ 97 Cal.Rptr. 657 , 489 P.2d 537 ].) However, Commonwealth states the rule too broadly. New theories may not be presented to the appellate court after trial. This is grounded on principles of waiver and estoppel, and is a matter of judicial economy and fairness to opposing parties. (9 Witkin, Cal. Procedure (3d ed. 1985) Ap peal, § 316, pp. 327-329; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 366, pp. 419-420.) But in the pleading stage these considerations are inapplicable, and on appeal from a demurrer we search the facts to see if they make out a claim for relief under any theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103 [ 101 Cal.Rptr. 745 , 496 P.2d 817 ].) Coruccini v. Lambert (1952) 113 Cal.App.2d 486 [ 248 P.2d 457 ], cited by Commonwealth, is incorrect to the degree that it suggests otherwise.

“The elements of the tort [of slander of title] . . . have traditionally been held to be publication, falsity, absence of privilege, and disparagement of another’s land which is relied upon by a third party and which results in a pecuniary loss.” (Appel v. Burman (1984) 159 Cal.App.3d 1209, 1214 [ 206 Cal.Rptr. 259 ].) A privilege, either absolute or qualified, is a defense to a charge of slander of title. The privileges are codified in Civil Code section 47 (Slaughter v. Friedman (1982) 32 Cal.3d 149, 158 [ 185 Cal.Rptr. 244 , 649 P.2d 886 ]), which states in part: “A privileged publication or broadcast is one made . . . 3. In a communication, without malice, to a person interested therein, ... [by a person] who is requested by the person interested to give the information.” There is some confusion in the cases as to which side must plead and prove the existence or nonexistence of the privilege. Smith claims that Stevens v. Snow (1923) 191 Cal. 58 [ 214 P. 968 ] holds that the defendant bears the burden of proof, while Commonwealth cites Hill v. Allan (1968) 259 Cal.App.2d 470 [ 66 Cal.Rptr. 676 ] for the proposition that the plaintiff must allege and prove that the communication is not privileged. In this instance the better view appears to be a dialectical synthesis of these opposing views. Jones v. Express Pub. Co. (1927) 87 Cal.App. 246, 255-256 [ 262 P. 78 ] states: “The burden is also upon the defendant to prove any affirmative defense upon which he relies, including . . . that the communication is privileged. But when the pleadings admit. . . such facts, manifestly the defendant is thereby relieved of this burden.” “Normally, privilege is an affirmative defense which must be. pleaded in the answer [citation]. However, if the complaint discloses existence of a qualified privilege, it must allege malice to state a cause of action [citation].” (Cameron v. Wernick (1967) 251 Cal.App.2d 890, 894-895 [ 60 Cal.Rptr. 102 ], quoting Morris v. National Federation of the Blind (1961) 192 Cal.App.2d 162, 164-165 [ 13 Cal.Rptr. 336 ].) Finally, “Ordinarily privilege must be specially pleaded by the defendant, and the burden of proving it is on him. [Citations.] But where the complaint shows that the communication or publication is one within the classes qualifiedly privileged, it is necessary for the plaintiff to go further and plead and prove that the privilege is not available as a defense in the particular case, e.g., because of malice.” (4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 302, p. 2573.)

The privilege of Civil Code section 47 quoted above appears on the face of Smith’s complaint. State Savings and Loan was interested in the title report, and requested it from Commonwealth. Malice therefore may not be inferred. (Civ. Code, § 48.) Since Smith does not allege malice, his complaint does not state a cause of action for slander of title.

Moreover, a title insurance policy does not constitute a “publication.” It is a contract to indemnify against loss caused by defects in the title or encumbrances on the title. It is not a representation that the title is in any particular condition. (Walters v. Marler (1978) 83 Cal.App.3d 1, 18 [ 147 Cal.Rptr. 655 ].)

Turning to Smith’s negligence cause of action, we find that it is foreclosed by Stagen v. Stewart-West Coast Title Co. (1983) 149 Cal.App.3d 114 [ 196 Cal.Rptr. 732 ]. That case held that “title companies [are] liable only to persons (1) for whose guidance information was supplied; (2) who justifiably relied on the information; and most importantly, (3) who were intended to be influenced by the communication. Intent to influence is a threshold issue. In its absence there is no liability even though a plaintiff has relied on the misrepresentation to his or her detriment, and even if such reliance were reasonably foreseeable. [Citations.]” {Id., at pp. 121-122, fn. omitted.) At bench, Commonwealth did not supply the title report for Smith’s guidance; Smith did not rely on the title report; and Commonwealth did not intend to influence Smith. Thus, Commonwealth cannot be liable to Smith.

Smith urges us to disregard Stagen on the ground that it is inconsistent with J’Aire Corp. v. Gregory (1979) 24 Cal.3d 799 [ 157 Cal.Rptr. 407 , 598 P.2d 60 ]. The contention is unpersuasive. J’Aire Corp. did not concern a title report, but merely held that a plaintiff may recover for economic loss due to defendant’s negligence, even in the absence of physical injury. In doing so it relied on Biakanja v. Irving (1958) 49 Cal.2d 647 [ 320 P.2d 16 , 65 A.L.R.2d 1358 ]. However, the Stagen court distinguished Biakanja and its progeny:

Smith’s second cause of action for tort of another is also based on Commonwealth’s negligence. Thus, it too cannot stand.

Finally, we note that on December 19, 1985 Division Five of this court filed its opinion in the related case of Smith v. State Savings and Loan Assn. (1985) 175 Cal.App.3d 1092 [ 223 Cal.Rptr. 298 ]. That case held that State Savings’ trust deeds were in fact senior to Smith’s under the doctrine of equitable subrogation. Obviously, Smith’s claim of negligence has completely vanished as a result. The demurrer in the case at bench was properly sustained.

The judgment is affirmed.

Compton, J., and Gates, J., concurred.

Appellants’ petition for review by the Supreme Court was denied April 23, 1986.

The same privileges apply to defamation and to slander of title (Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d 386, 389-390 [ 182 Cal.Rptr. 438 ]) and thus cases dealing with defamation privileges generally may be cited for slander of title questions.