RGC GASLAMP, LLC, Plаintiff and Appellant, v. EHMCKE SHEET METAL CO., INC., Defendant and Appellant. RGC GASLAMP, LLC, Plaintiff and Appellant, v. EHMCKE SHEET METAL CO., INC., Defendant and Respondent.
D075615 (Super. Ct. No. 37-2018-00036303-CU-OR-CTL) | D076594
COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA
Filed 10/23/20
CERTIFIED FOR PUBLICATION
APPEALS from orders of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed.
Solomon Ward Seidenwurm & Smith, Thomas Landers and Leah Suzanne Strickland for Defendant and Appellant and for Defendant and Respondent.
Subcontractor Ehmcke Sheet Metal Company (Ehmcke) recorded a mechanic‘s lien to recoup payment due for sheet metal fabrication and installation work done on a luxury hotel project in downtown San Diego. Project owner RGC Gaslamp, LLC (RGC) secured a bond to release the lien. Thereafter Ehmcke filed three successive mechanic‘s liens, each identical to the first, prompting RGC to sue it for quiet title, slander of title, and declaratory and injunctive relief. The trial court granted Ehmke‘s special motion to strike under the anti-SLAPP statute. (
The trial court found that Ehmcke met its moving burden because the filing of even an invalid lien is protected petitioning activity. Thereafter, the court found that RGC failed to make a prima facie showing that its sole remaining cause of action for slander of title could withstand application of the litigation
As we explain, RGC erroneously imports substantive requirements of the litigation privilege into the first step of the anti-SLAPP inquiry. At prong one of the anti-SLAPP inquiry, a defendant need only show a prima facie case that the activity underlying plaintiff‘s action is protected, not that its acts were ultimately lawful. Moreover, even if the good faith and serious contemplation criteria in A.F. Brown applied here, Ehmcke met that moving burden once its erroneously excluded reply declarations are considered. With the burden shifted on prong two, RGC failed to mаke a prima facie showing that the litigation privilege did not bar its slander-of-title cause of action. The anti-SLAPP motion was thus properly granted, and we likewise affirm the subsequent attorney‘s fees and costs award.
FACTUAL AND PROCEDURAL BACKGROUND2
RGC is the developer and owner of the Pendry Hotel in downtown San Diego. Ehmcke performed sheet metal installation and fabrication for the project and alleged it was not paid after completing its subcontracting work in April 2017. In September 2017, Ehmcke filed and recorded a mechanic‘s lien (first lien) for $257,978 against the property. The following month, RGC secured and recorded a bond from Liberty Mutual for $322,473 to release the first lien. In December, Ehmcke filed a second mechanic‘s lien identical to the first lien.
A few months passed. On April 10, 2018, Ehmcke filed and recorded a series of documents in which it withdrew the first and second liens and filed a third identical mechanic‘s lien for the same work.3 RGC once again obtained
RGC initiated this actiоn on July 19, filing a verified complaint for quiet title, slander of title, and declaratory and injunctive relief. Attached as exhibits were copies of the four recorded mechanic‘s liens, withdrawals of the first, second, and third liens, and surety bonds for the first and third liens. Ehmcke responded by filing a special motion to strike pursuant to the anti-SLAPP statute,
Attached to its anti-SLAPP motion was a declaration by Ehmcke Vice President, Billy Taylor. Taylor stated that Ehmcke had not been paid for sheet metal installation and fabrication work at the Pendry Hotel. Subsequently, it recorded four mechanic‘s liens, all since released. RGC‘s lawsuit challenged the fourth lien, recorded on July 5, 2018. According to Taylor, “Before Ehmcke retained Solomon Ward as counsel it was not properly advised of the legal and statutory scheme regulating mechanic‘s lien law in Califоrnia.” But after retaining the firm, Ehmcke promptly released the fourth mechanic‘s lien. As of August 28, 2018, there had been no mechanic‘s liens recorded against the property, and Taylor asserted that “Ehmcke does not intend to record any additional mechanic‘s liens.”
RGC opposed the anti-SLAPP motion, arguing that the filing of duplicative mechanic‘s liens was neither protected petitioning activity nor covered by the litigation privilege. As it does on appeal, RGC relied primarily on A.F. Brown, supra, 137 Cal.App.4th 1118, asserting that although the first lien was likely privileged, subsequent identical liens were not. RGC claimed that Ehmcke could not and did not file the second, third, and fourth mechanic‘s liens in good faith or while a lawsuit was under serious consideration. Describing the statutory scheme as protecting both contractors and owners, RGC maintained that the reasons for treating a first mechanic‘s lien as privileged did not extend to subsequent duplicative liens. Because the mechanic‘s lien laws (
Ehmcke responded that RGC had conflated the two prongs of the anti-SLAPP inquiry by using the litigation privilege to define the scope of protected activity. According to Ehmcke, anti-SLAPP protection was not negated by its filing of a statutorily invalid mechanic‘s lien. Nor could RGC show its claims had minimal merit when the recording of even an invalid mechanic‘s lien was covered by the litigation privilege. Ehmcke contested RGC‘s assertion that it had acted in bad faith, submitting three new declarations with its reply.5
Both parties filed evidentiary objeсtions. RGC objected to the reply evidence in its entirety. The court struck all three reply declarations, citing the general rule that new evidence may not be submitted by an anti-SLAPP movant on reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay).)
At the hearing, the trial court gave its tentative ruling. Ehmcke had to show that RGC‘s action arose from its protected activity, and the filing of a mechanic‘s lien met that burden. The burden then shifted to RGC to establish a probability of prevailing on the merits. RGC could not do so because although what Ehmcke did was wrong, the filing of the fourth mechanic‘s lien remained protected by the litigation privilege (
DISCUSSION
RGC challenges the anti-SLAPP ruling, arguing the filing of repetitive mechanic‘s liens is protected by neither the anti-SLAPP statute nor the litigation privilege. To the extent we are inclined to reverse the trial court‘s anti-SLAPP ruling, Ehmcke cross-appeals the evidentiary ruling striking all three declarations submitted on reply. As we explain, the anti-SLAPP motion was properly granted. The filing of a mechanic‘s lien constitutes protected activity, even if the lien was invalid or otherwise improper. Although we disagree with A.F. Brown‘s suggestion that an anti-SLAPP moving party must establish that a mechanic‘s lien must be filed in good faith and in serious contemplation of litigation, those requirements too are met if the erroneously excluded reply declarations submitted by Ehmcke are considered. Next, RGC fails to demonstrate a likelihood of overcoming the litigation privilege on the merits as to its sole remaining claim for slander of title. The anti-SLAPP motion was properly granted, as was the subsequent request for fees and costs.6
1. Legal Principles
This case addresses the applicability of statutory anti-SLAPP protections to an improperly filed duplicative mechanic‘s lien. To understand the issues in the appeals and cross-appeal, we provide some background concerning both statutory schemes.
California‘s constitution enshrines a right to record a mechanic‘s lien: “Mechanics, persons furnishing materials, artisans, and laborers of every class, shall have a lien upon the property upon which they have bestowed labor or furnished material for the value of such labor done and material furnished; and the Legislature shall provide, by law, for the speedy and efficient enforcement of such liens.” (
The statutory scheme reflects a balancing of interests between property owners and claimants. The primary goal of the statutes is to protect a laborer or material supplier who improves an owner‘s property by assuring payment for the value of work done. (See T.O. IX, LLC v. Superior Court (2008) 165 Cal.App.4th 140, 146 (T.O.).) At the same time, the statutory scheme reflects a recognition that the recording of a mechanic‘s lien encumbers the affected real property. Thus, in providing security and a swift remedy, mechanic‘s lien laws protect both lien claimants and property owners. (Ibid.)
As a subcontractor on a private construction project, Ehmcke had a right to record a mechanic‘s lien. (
The next step after preliminary notice is for a claimant to record a claim of lien. Ehmcke had to record a lien within 90 days of completing its work on the project, or within 30 days of RGC‘s notice of completion, whichever date
Claimants enforce their mechanic‘s liens through foreclosure, and must commence a foreclosure suit within 90 days after recording the lien. (
The recording of a mechanic‘s lien “may severely hamper [the owner‘s] ability to sell or encumber that property.” (Connolly, supra, 17 Cal.3d at p. 812.) “If there were no provisions for releasing the lien, a claimant could file a questionable claim of lien and either cloud the owner‘s title for the years necessary to litigate the claim or force the owner to pay the claim even though it is disputed. Therefore, when any contractor or subcontractor, the property owner, or any other person who has an interest in the property
Pursuant to
Once a release bond is recorded, it becomes the lien claimant‘s sole recourse for collecting sums due. (9 Miller & Starr, Cal. Real Estate, supra, § 32:66.) “The recording of the release bond does not extinguish the lien; rather, the bond is substituted for the land as the object to which the lien attaches.” (Hutnick, supra, 47 Cal.3d at p. 463; see T.O., supra, 165 Cal.App.4th at p. 145.) A claimant must commence an action on the bond within six months of receiving notice of the bond. (
b. Anti-SLAPP Statute (Code Civ. Proc, § 425.16 )
“Enacted by the Legislature in 1992, the anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884 (Wilson);
2. Prong One: Does RGC‘s Claim Arise Out of Protected Activity?
We review de novo whether RGC‘s claims arise from protected activity. (Wilson, supra, 7 Cal.5th at p. 884.) At this first step of the anti-SLAPP inquiry, Ehmcke “must make two related showings.” (Id. at p. 887.) “Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. (See [
Among other types of communiсations, the anti-SLAPP statute protects “any written or oral statement or writing made before a legislative, executive, or judicial proceeding” (
a. As a prerequisite to a foreclosure action, recordation of the fourth mechanic‘s lien was protected despite its invalidity.
At the first prong, courts consider whether a defendant has made a prima facie showing that activity underlying a plaintiff‘s causes of action is
It is here that RGC‘s argument falters. RGC asserts that although the filing of a single mechanic‘s lien is protected activity, the filing of duplicative liens after proper bonding is not. But a defendant does not have to establish that its conduct was ultimately lawful or constitutionally protected at prong one. (Navellier, supra, 29 Cal.4th at p. 94; Wilson, supra, 7 Cal.5th at pp. 887-888.) RGC‘s quiet title, slander of title, and declaratory relief causes of action all challenged Ehmcke‘s filing of the fourth mechanic‘s lien. The filing of a mechanic‘s lien is a necessary prerequisite to bringing a foreclosure action. (
Birkner v. Lam (2007) 156 Cal.App.4th 275 (Birkner) is instructive. Tenants sued their former landlord for wrongful eviction, alleging the landlord violated a San Francisco rent ordinance in serving and refusing to rescind a notice to terminate their tenancy. (Id. at pp. 278-279.) The trial court denied the landlord‘s special motion to strike, concluding his conduct was not in furtherance of a protected right to petition. (Id. at p. 280.) The Court of Appeal disagreed, explaining that the landlord‘s service of lease termination was statutorily protected as a legal prerequisite for bringing an unlawful detainer action. (Id. at pp. 281-282.) As such, both the service of and refusal to rescind the termination notice constituted communications preparatory to or in anticipation of legal action, protected under
RGC argues that the mechanic‘s lien framework does not envision duplicative mechanic‘s liens. But the analysis does not change merely because it alleges Ehmcke‘s conduct was unlawful. For example, in Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, debtors challenged a bank‘s practice of filing collection actions in distant judicial forums to prevent debtors’ participation. This abusive practice was itself within the ambit of prong one of the anti-SLAPP statute because it rested on the bank‘s protected act of filing a complaint. As the court explаined, “[t]his conclusion does not imply that the distant forum abuse alleged by the Yus
b. No additional showing of good faith or serious contemplation of litigation was required where the prelitigation communication involved the filing of a mechanic‘s lien.
Urging a different result, RGC relies on A.F. Brown, supra, 137 Cal.App.4th 1118, which considered whether a supplier‘s issuance of stop payment notices qualified as protected activity.10 Concluding it did not, the court explained that the filing of a stop notice, like the filing of a mechanic‘s lien, “is protected under the anti-SLAPP statute only if done when a lawsuit related to that act was contemplated in good faith and given serious consideration.” (A.F. Brown, at pp. 1128-1129.) The supplier‘s declarations made a preliminary showing that it filed the stop notices in good faith belief of a legally viable claim. (Id. at p. 1128.) Nevertheless, the declarations failed to demonstrate that the stop notices were filed when litigation was under serious consideration. (Ibid.) At best, the supplier averred that it would pursue all available legal remedies, and a threat of potential legal action did not demonstrate that a lawsuit was under serious consideration. (Ibid.)
We believe A.F. Brown was incorrectly decided. The discussion began with the since-undermined premise that activity protected under the anti-SLAPP statute is “coextensive” with that covered by the litigation privilege. (A.F. Brown, supra, 137 Cal.App.4th at p. 1124;
As the Supreme Court made clear just months after A.F. Brown was decided, although courts may use the litigation privilege “as an aid” in determining whether a given communication arises out of protected activity, the litigation privilege and anti-SLAPP statute serve different purposes and are not necessarily coextensive. (Flatley, supra, 39 Cal.4th at pp. 322-323, 325; see also Third Laguna Hills Mutual v. Joslin (2020) 49 Cal.App.5th 366, 375 [“The scope of protection frоm claims under the anti-SLAPP statute is not always the same as the scope of protection for communications under the litigation privilege.“]; Garretson v. Post (2007) 156 Cal.App.4th 1508, 1519 [challenging A.F. Brown‘s characterization of the litigation privilege and anti-SLAPP statute as “coextensive,” explaining that “the scope of the litigation privilege and the anti-SLAPP statutes significantly differ“].)
Only a few cases endeavor to explain why the substantive restrictions to the litigation privilege should apply in prong one to determine whether prelitigation communications qualify for anti-SLAPP protection. Neville, supra, 160 Cal.App.4th 1255 drew parallels between the anti-SLAPP statute, which protects communications made “in connection with an issue under consideration or review” (
We sense a potential tension between this line of analysis and the Supreme Court‘s repeated warnings that prong one requires only a prima facie showing of protected activity, not a showing that the defendant‘s acts were ultimately lawful or constitutionally protected. (Navellier, supra, 29 Cal.4th at p. 94; Wilson, supra, 7 Cal.5th at p. 888.) Thus, for example, the anti-SLAPP statute does not “require a defendant to disprove allegations of illicit motive” at this initial stage. (Wilson, at p. 887.) Requiring a moving defendant to affirmatively show that its statements were made in good faith while litigation was seriously contemplated would seem, at least in certain contexts, to import a merits inquiry as to whether the statements ultimately arose from protected petitioning activity. On the other hand, such criteria may be helpful in evaluating prelitigation statements that do not intrinsically anticipate litigation. (See, e.g., Rohde v. Wolf (2007) 154 Cal.App.4th 28, 36-37 [concluding voicemail messages were protected activity].)
We need not resolve this potential tension here. As Anapol explains, defendants impliedly satisfy the good faith and serious contemplation of litigation showing where “it is necessary to serve or record a document prior to the commencement of litigation.” (Anapol, supra, 211 Cal.App.4th at p. 824.) As examples, the Anapol court cited Birkner, supra, 156 Cal.App.4th 275, 282, where service of a notice of termination was a prerequisite for an unlawful detainer action; Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480 (Feldman), where service of a three-day notice to quit was a “legally required prerequisite to the filing of the unlawful detainer action“; and Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285, where recording a notice of rescission was a necessary prerequisite for a rescission action. Each of those cases found the moving party‘s prong one burden met by simple evidence of filing without any additional inquiry into the propriety of the filing. Indeed, Birkner and Feldman further clarified that a movant is not required at the first stage to demonstrate that its conduct was protected by the litigаtion privilege. (Birkner, at p. 284 [whether landlord‘s conduct was protected by the litigation privilege was “irrelevant” to prong one analysis]; Feldman, at p. 1480, fn. 5 [“Park Lane cross-defendants were not required at the first stage to demonstrate that serving the notice to quit was protected by the litigation privilege.“].)
Distinguishing each of these cases on the facts before it, the Anapol court reached a different result because the submission of an insurance claim was a necessary prerequisite for either litigation or contractual performance.
Our case is similar to Birkner, Salma, and Feldman and readily distinguishable from Anapol and Bel Air. Recording a mechanic‘s lien is a necessary prerequisite to a foreclosure action. It is not a prerequisite for contractual performance or anything else. As such, it is protected as conduct
preparatory to or in anticipation of litigation. (Briggs, supra, 19 Cal.4th at p. 1115.) No additional showing was required for Ehmcke to satisfy its moving burden. (Birkner, supra, 156 Cal.App.4th at p. 284 [first prong of
In our view, A.F. Brown errs by requiring more. The electrical subcontractor (A.F. Brown) sued its material supplier for libel and unfair business practices based on the supplier‘s issuance of stop notices to a school district where work was performed. (A.F. Brown, supra, 137 Cal.App.4th at p. 1125.) In declarations filed with its moving papers, the supplier suggested that the stop notices and collection efforts were aimed at collecting amounts due. Although the A.F. Brown court deemed this proffer insufficient to show that “the acts were taken when litigation was under serious consideration” (id. at p. 1128), such a showing was not required because a stop payment notice
c. Assuming an additional showing was required, Ehmcke‘s reply declarations established that the fourth lien was filed in good faith while seriously contemplating litigation.
Even if A.F. Brown were decided correctly, materials submitted by Ehmcke in conjunction with its reply suggest it filed each mechanic‘s lien in good faith while seriously contemplating litigation. The trial court struck the reply declarations in their entirety, citing Jay, supra, 218 Cal.App.4th 1522, 1537 for the proposition that new evidence is generally not permitted on an anti-SLAPP reply. Although we review that decision for abuse of discretion (id. at p. 1536), Jay addresses the situation where the moving party attempts to introduce “entirely new evidence.” (Id. at p. 1537.) Indeed, it specifically recognizes an exсeption to the general rule where new evidence offered on reply “was supplemental to evidence submitted in the moving papers [and] not brand new.” (Ibid.; see also id. at p. 1538 [permitting new evidence on reply to “fill[] gaps in the evidence created by the [plaintiff‘s] opposition“].) That is the scenario here, and striking the reply declarations amounted to an abuse of discretion.
RGC alleged in its complaint that Ehmcke filed duplicative liens “for the purpose of adversely affecting title” and “with actual malice.” Ehmcke responded to these allegations in its moving papers, submitting a declaration by Vice President Billy Taylor stating that money was due for work performed, leading Ehmcke to file successive liens because it “was not properly advised“; after retaining counsel, Ehmcke released all the liens, and it intended to file no more. Summarizing these factual allegations, Ehmcke characterized the fourth lien as “improper” in its moving brief.
Relying on A.F. Brown, RGC countered in its opposition brief, “If, as Ehmcke has declared, it was not properly advised regarding the mechanic‘s lien framewоrk, then Ehmcke could not have had a lawsuit under ‘serious consideration.’ ” It pointed to the fact that Ehmcke never filed suit to foreclose on the second, third, or fourth liens to suggest it was never seriously considering a lawsuit. As RGC went on to state, “Ehmcke‘s bad
It is in this context that Taylor submitted a declaration on reply clarifying why Ehmcke filed successive liens. This evidence did not contradict his earlier statement of being misadvised; it instead offered texture to rebut the claim that successive liens were filed in a bad faith desire to cloud RGC‘s title:
“All four mechanic‘s liens were recorded while Ehmcke was seriously considering litigation. In fact, Ehmcke typically does not record mechanic‘s liens, and does so when there is a problem on the job. Here, Ehmсke recorded the mechanic‘s liens hoping, perhaps naively, that it could avoid the time and expense of litigation to get paid for its work on the Property through the recordings. Eventually, Ehmcke was forced to sue to get paid.”
In addition, Ehmcke submitted declarations from attorneys Richard McCarthy and Thomas Landers, who described what transpired after Ehmcke received the demand letter. These filings suggested that Ehmcke released the fourth lien on July 20 as RGC had requested, a day after this lawsuit was filed. It filed an amended release a month later to correct a minor clerical error in identifying the fourth lien.13
We believe these reply declarations were necessitated by questionable argument in RGC‘s opposition brief that was not reasonably anticipated at the time Ehmcke filed its moving papers. We easily distinguish this case from Jay, where the moving defendants waited until their reply to proffer any evidence to meet their moving burden, failing even to address contentions made in the complaint. (Jay, supra, 218 Cal.App.4th at p. 1537.) Although the complaint alleged malice and an intent to cloud title, Taylor‘s mоving brief responded to these allegations by suggesting Ehmcke was simply misadvised. When RGC used this statement to suggest no lawsuit was ever contemplated, Ehmcke was entitled to clarify any ambiguity. A misleading characterization of when Ehmcke released the fourth lien likewise invited the attorney declarations on reply.
In short, we question the rationale of A.F. Brown in light of subsequent developments in anti-SLAPP case law, but even if it were correct, the evidence submitted with Ehmcke‘s moving and reply papers was sufficient to meet its burden to show that RGC‘s lawsuit arose out of protected petitioning activity. All four liens were filed when Ehmcke was seriously contemplating litigation, and Ehmcke ultimately did sue to recoup amounts due. Ehmcke did not typically record mechanic‘s liens and did so only when there were problems. Its goal all along was “to get paid for its work on the Property through the recordings,” which is the purpose of the mechanics lien procedure. The attorney declarations likewise demonstrated that Ehmcke released the fourth lien immediately after retaining counsel, the same day requested in the demand letter, and a mere day after the complaint was filed. These actions suggest that although Ehmcke was mistaken about its legal rights at the outset, it recorded its fourth successive mechanic‘s lien in good faith, seriously contemplating litigation. This prima facie showing suffices to meet the burden on prong one.
3. Prong Two: Did RGC Offer Sufficient Evidence to Establish the Merit of its Claim?
The sole cause of action that remained at issue when the anti-SLAPP motion was filed was for slander of title.14 Because Ehmcke had already released the fourth lien and indicated that no additional liens would be filed, RGC‘s cause of action for quiet title was moot; there was no longer an “active controversy” for declaratory relief; and injunctive relief was unnecessary. (See Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 136 [quiet title claim was mooted by withdrawal of homeowners’ association claim];
RGC admits its quiet title action was moot once Ehmcke released the fourth lien but nevertheless maintains it was improper to dismiss it under the anti-SLAPP statute because the action was not moot when filed. It likewise argues without support that declaratory and injunctive relief was the only way to prevent Ehmcke from filing of successive liens. These are entirely new arguments. When Ehmcke argued mootness in its moving papers below, RGC only responded that its cause of action for slander of title had minimal merit. “It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.)15
That leaves RGC‘s slander of title claim. As the responding party, RGC had to make a prima facie showing that this cause of action had minimal merit. (Wilson, supra, 7 Cal.5th at p. 884.) Its “second-step burden is a limited one“—a trial court neither weighs the evidence nor resolves evidentiary conflicts. (Id. at p. 891.) To overcome any asserted defenses, RGC had to show that they were inapplicable as a matter of law or make a prima facie showing of facts that, if accepted, would negate such defenses. (Birkner, supra, 156 Cal.App.4th at p. 285.) The litigation privilege is one such defense that may be considered at prong two. (Ibid.; Feldman, supra, 160 Cal.App.4th at p. 1485.) The trial court found Ehmcke‘s filing of an invalid mechanic‘s lien was absolutely privileged such that RGC could not show its slander of title claim had minimal merit. We reach the same conclusion.
RGC could not show that the litigation privilege was categorically inapplicable. The privilege extends to all manner of tort actions except malicious prosecution, and our court has previously applied the privilege to bar an owner‘s analogous slander-of-title claim following a subcontractor‘s unsuccessful attempt to foreclose on a mechanic‘s lien. (Alpha & Omega, supra, 200 Cal.App.4th at p. 665 [finding the filing of a notice of lis pendens protected by the litigation privilege].) In reaching this result, we rejected the owner‘s argument that the notice of lis pendens was not subject to the litigation privilege because the underlying real property claim lacked evidentiary merit. (Id. at p. 667.)
As explained more than a half-century ago by Justice Traynor, the privilege applies to any publication that is either required or permitted by law in the course of a judicial proceeding to achieve that party‘s litigation objective. (Albertson v. Raboff (1956) 46 Cal.2d 375, 380-381.) “If the publication has a reasonable relation to the action and is permitted by law, the absolute privilege attaches.” (Ibid., partially abrogated on other grounds by
Frank Pisano & Associates v. Taggart (1972) 29 Cal.App.3d 1 (Frank Pisano) is closely on point. Engineering contractors recorded a mechanic‘s lien and filed an action for foreclosure and breach of contract. (Id. at p. 10.) The property owners filed a cross-complaint for damages, alleging disparagement of title from the recording of an invalid lien. (Ibid.) When the owners appealed the denial of relief on their cross-complaint, the contractors argued that pursuant to the litigation privilege, “no liability can be predicated upon its filing, even if it was not a valid claim of
RGC suggests Frank Pisano applies solely to the privileged filing of an initial mechanic‘s lien. But as the trial court explained, the case stands for the proposition that “if it‘s a privileged act to file a mechanic‘s lien, that privilege is not lost if it turns out that the mechanic‘s lien was not something that was ultimately valid or appropriate to do.” We agree with the trial court that any deficiency in the lien “goes to the matter of defense to the [foreclosure] action” but does not defeat the privilege. More generally, a party cannot avoid the litigation privilege “simply by asserting that litigation to which the statement is related is without merit, and therefore the proponent of the litigation could not in good faith have believed it had a legally viable claim. To adopt such an interpretation would virtually eradicate the litigation privilege for all but the most clearly meritorious claim.” (Feldman, supra, 160 Cal.App.4th at p. 1489.) Accordingly, RGC did not show that the litigation privilege was inapplicable as a matter of law to its slander-of-title claim.
Nor did RGC make a prima facie showing of facts that, if accepted, would rebut the litigation privilege. Because the policy of promoting judicial access is not advanced by shielding attempts to profit from hollow threats, prelitigation communications are protected under the litigation privilege only if they relate to litigation “contemplated in good faith and under serious consideration.” (Action Apartment, supra, 41 Cal.4th at p. 1251.) To overcome the litigation privilege on an anti-SLAPP motion, a responding party may establish facts that would, if accepted, negate these prerequisites. For example, in Olivares v. Pineda (2019) 40 Cal.App.5th 343 (Olivares), tenants suing their landlord‘s attorneys met their prong-two burden by showing that the challenged attorney communication did not precede an unlawful detainer action and was instead followed by repeated requests to settle short of litigation. (Id. at pp. 357-358.) A similar result was reached in Dickinson v. Cosby (2017) 17 Cal.App.5th 655, where attorneys sent a demand letter to media outlets threatening litigation if they aired rape allegations against their client. The evidence supported a prima facie inference that the demand letter was intended as a bluff to silence the media, and not sent in serious contemplation of litigation—the letter was sent only to outlets that had not run the story, and the client had not sued any of the multiple media outlets that already ran the story. (Id. at p. 684.)
To be sure, not every cause of action based on the recordation of an invalid mechanic‘s lien will be barred by the litigation privilege. Courts have long recognized that upon service of preliminary notice or upon later recordation of a mechanic‘s lien, a project owner may seek declaratory and injunctive relief challenging the validity of the lien. (Connolly, supra, 17 Cal.3d at pp. 822-823; see also 9 Miller & Starr, Cal. Real Estate, supra, § 32:37 [“An owner could probably also seek to remove any invalid lien by filing an action to quiet title.“].) If Ehmcke had filed several duplicative liens before the filing of a release bond, RGC could seek a court order requiring it to post a single bond to release all duplicative liens. (T.O., supra, 165 Cal.App.4th at p. 148.) Or, if Ehmcke had tried to foreclose on an invalid lien, RGC could have filеd a motion in that action to release the lien. (Lambert, supra, 228 Cal.App.3d at pp. 386-387; see Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318 [“A motion to remove a mechanic‘s lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustified lien or a lien of an unjustified amount without waiting for trial on the action to foreclose the lien.“].) We have found no authority to suggest that these types of actions would be barred by the litigation privilege, which generally precludes derivative tort liability. (Feldman, supra, 160 Cal.App.4th at p. 1486.)
4. Fee and Cost Award
A defendant that prevails on an anti-SLAPP motion to strike is generally entitled to recover attorney‘s fees and costs. (
DISPOSITION
The orders granting the anti-SLAPP motion and awarding Ehmcke fees and costs are affirmed. Ehmcke is entitled to an award of appellate costs, as well as attorney‘s fees as the prevailing party in an anti-SLAPP appeal. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.)
DATO, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.