56 Cal.App.5th 413
Cal. Ct. App.2020Background
- Project: Ehmcke (subcontractor) performed sheet‑metal work on RGC’s Pendry Hotel in San Diego and claimed unpaid sums.
- Liens/Bonds: Ehmcke recorded four successive mechanic’s liens for the same work; RGC obtained release bonds after the first and third liens and recorded them.
- Litigation: After the fourth lien (post‑bonding), RGC sued for quiet title, slander of title, and declaratory/injunctive relief; Ehmcke moved to strike under the anti‑SLAPP statute.
- Trial court rulings: The court granted Ehmcke’s anti‑SLAPP motion, struck RGC’s remaining slander‑of‑title claim as barred by the litigation privilege, struck certain reply declarations below, and awarded Ehmcke fees and costs.
- Appeal: RGC appealed the anti‑SLAPP dismissal and fee award; Ehmcke cross‑appealed the evidentiary ruling. The Court of Appeal affirmed both the anti‑SLAPP ruling and fee award and rejected RGC’s challenges.
Issues
| Issue | Plaintiff's Argument (RGC) | Defendant's Argument (Ehmcke) | Held |
|---|---|---|---|
| Whether filing duplicative mechanic’s liens after owner posts a release bond is protected petitioning activity under anti‑SLAPP prong one | Filing repeated liens after a bond has been posted is not protected because the statutes do not permit repeat liens and the filings were not connected to bona fide litigation | Filing a mechanic’s lien (even if later invalid) is a prelitigation act preparatory to foreclosure and thus falls within anti‑SLAPP protected activity | Filing mechanic’s liens (including the post‑bond duplicative lien) qualifies as protected activity at prong one; defendant need only make a prima facie showing, not prove ultimate lawfulness |
| Whether moving defendant must prove the lien was filed in good faith and while litigation was seriously contemplated at prong one (A.F. Brown rule) | A.F. Brown requires a showing of good faith and serious contemplation for prelitigation communications to be protected; duplicative liens fail that test | The anti‑SLAPP prong one requires only a prima facie showing that the conduct is petitioning activity; importing A.F. Brown’s substantive litigation‑privilege criteria into prong one improperly imports a merits inquiry | Court rejects A.F. Brown’s importation as a general rule; but even if applied here, Ehmcke’s (struck) reply declarations would have satisfied the showing |
| Whether the trial court abused discretion by striking Ehmcke’s reply declarations | The opposition argued the reply evidence was new and improperly raised on reply | The reply evidence supplemented and clarified matters raised in opposition and the moving papers, so it was permissible to rebut new arguments and fill evidentiary gaps | Striking the reply declarations was an abuse of discretion under the circumstances; they were properly considered for prong one and prong two context |
| Whether RGC’s slander‑of‑title claim had minimal merit or was barred by the litigation privilege at prong two | The duplicative post‑bond lien showed lack of good faith and was not protected by the litigation privilege; thus the claim had minimal merit | The litigation privilege (§ 47(b)) absolutely protects publications made to achieve litigation objectives (including lien filings), even if the lien is ultimately invalid; any deficiency is a defense in the underlying action | Court held the litigation privilege barred RGC’s slander‑of‑title claim; RGC failed to make the required prima facie showing of minimal merit |
| Whether Ehmcke was entitled to attorney’s fees and costs after prevailing on anti‑SLAPP | RGC did not contest the fee amount but contested entitlement | Prevailing defendant on an anti‑SLAPP motion is generally entitled to fees and costs under § 425.16(c) | Fee and cost award to Ehmcke affirmed |
Key Cases Cited
- A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc., 137 Cal. App. 4th 1118 (Cal. Ct. App.) (addressed good‑faith/serious‑contemplation requirement for stop notices)
- Flatley v. Mauro, 39 Cal. 4th 299 (Cal. 2006) (explains anti‑SLAPP purposes and relationship to litigation privilege)
- Wilson v. Cable News Network, Inc., 7 Cal. 5th 871 (Cal.) (anti‑SLAPP two‑step framework and burdens)
- Baral v. Schnitt, 1 Cal. 5th 376 (Cal.) (clarifies prong allocations in anti‑SLAPP analysis)
- Navellier v. Sletten, 29 Cal. 4th 82 (Cal. 2002) (limits merits inquiry at prong one)
- Birkner v. Lam, 156 Cal. App. 4th 275 (Cal. Ct. App.) (service/filing that is prerequisite to litigation is protected at prong one)
- Frank Pisano & Associates v. Taggart, 29 Cal. App. 3d 1 (Cal. Ct. App.) (recording a mechanic’s lien is privileged under § 47(b) even if lien is invalid)
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal. 4th 1232 (Cal.) (litigation‑privilege requirement that prelitigation communications relate to litigation seriously contemplated)
- Connolly Development, Inc. v. Superior Court, 17 Cal. 3d 803 (Cal. 1976) (owners may seek injunction/declaratory relief to prevent imposition of lien; procedural safeguards)