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November 2, 2011

Alpha and Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656

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The Fourth District holds a recordation of a lis pendens is protected by the litigation privilege so long as it meets the requirements of Civil Code § 47 regardless of the evidentiary merit of the underlying claim.

Alpha and Omega Development, LP sued Whillock Contracting Inc.  for slander of title and malicious prosecution after Whillock brought an unsuccessful action against Alpha and Omega to foreclose on a mechanic’s lien.  In the underlying action, the Court granted Alpha and Omega’s motion to expunge the lis pendens, but denied its motion for judgment on the pleadings in connection with Whillock’s cause of action for foreclosure of mechanic’s lien.

After that action was resolved, Alpha and Omega sued Whillock, alleging that it wrongfully and without privilege caused a lis pendens to be recorded against its which impaired its value.  Whillock prevailed on its anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) motion as to a slander of title claim on the ground that the lis pendens was protected by the litigation privilege.

On appeal Alpha and Omega asserted it had satisfied its burden to establish a probability of prevailing on its claim.  It argued the litigation privilege did not apply to the lis pendens because Whillock’s claim lacked evidentiary merit and was therefore not privileged.

The Court of Appeal noted that Civil Code § 47(b)(4) governs the application of the litigation privilege to a recorded lis pendens.  It provides “A recorded lis pendens is not a privileged publication unless it identifies an action previously filed with a court of competent jurisdiction which affects the title or right of possession of real property, as authorized by law.” That language is not ambiguous or susceptible to a construction that would create an additional exception to the absolute litigation privilege based on a lack of evidentiary merit of a claimant’s real property claim in connection with a recorded lis pendens.

The Court also noted that Code of Civil Procedure § 405.4 defines a real property claim as a “cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property….” This does not define a claim on the basis of the strengths or weaknesses of the evidence to support the claim, but from the cause or causes of action set forth in the pleadings.

Comment: The case should serve as a reminder that the application of the litigation privilege is defined by Civil Code § 47 – the statute the created it.


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