Alpha & Omega Development, LP v. Whillock Contracting, Inc.
132 Cal. Rptr. 3d 781
Cal. Ct. App.2011Background
- Alpha appeals a trial court ruling granting Whillock’s anti-SLAPP motion under §425.16 to a slander of title claim tied to a lis pendens.
- Underlying action involved Whillock’s foreclosure of a mechanic’s lien on real property owned by Alpha, with Whillock asserting a $1.48 million claim for services.
- Whillock recorded a lis pendens in 2007; Alpha later obtained title and the lis pendens was expunged; underlying action involved foreclosure-related proceedings.
- Alpha alleged the lis pendens damaged marketability and caused legal fees in defending the underlying action.
- The trial court held the lis pendens was protected by the litigation privilege, thus barring the slander of title claim.
- On appeal, Alpha concedes Whillock satisfied the protected activity prong; the dispute centers on whether the lis pendens is privileged under Civil Code §47(b)(4).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the lis pendens privileged under §47(b)(4)? | Alpha argues no privilege due to lack of real property claim. | Whillock contends lis pendens is privileged as a publication in a filed action affecting title. | Yes; lis pendens is privileged under §47(b)(4). |
| Does Palmer v. Zaklama limit the privilege here based on evidentiary merit? | Alpha relies on Palmer to claim no privilege if merit is lacking. | Whillock argues no such exception exists under §47(b)(4). | No exception; no lack-of-evidentiary-merit rule under §47(b)(4). |
| Did Alpha show a probability of prevailing on the merits N the slander of title claim? | Alpha contends evidence supports loss of value and consented continued work caused damages. | Whillock asserts privilege bars liability regardless of malice. | Alpha did not show probability of prevailing; privilege bars the claim. |
Key Cases Cited
- Palmer v. Zaklama, 109 Cal.App.4th 1367 (Cal. App. 2003) (lis pendens privilege may be defeated when underlying claims lack real property merit)
- Feldman v. 1100 Park Lane Associates, 160 Cal.App.4th 1467 (Cal. App. 2008) (litigation privilege is absolute in judicial proceedings)
- Rusheen v. Cohen, 37 Cal.4th 1048 (Cal. 2006) (purpose and scope of litigation privilege; absolute protection)
- Silberg v. Anderson, 50 Cal.3d 205 (Cal. 1990) (publication privilege extends beyond courtroom boundaries)
- Jacob B. v. County of Shasta, 40 Cal.4th 948 (Cal. 2007) (extension of privilege to communications in civil contexts)
- Manhattan Loft, LLC v. Mercury Liquors, Inc., 173 Cal.App.4th 1040 (Cal. App. 2009) (filing of lis pendens falls within protected activity under §425.16)
- Price v. Operating Engineers Local Union No. 3, 195 Cal.App.4th 962 (Cal. App. 2011) (two-step anti-SLAPP framework guidance)