Opinion
A115368 A116517
4-16-2008
ROBERT HUBERMAN, Plaintiff, Cross-defendant and Respondent, v. RAYMOND J. STEFFEN, III, et al., Defendants, Cross-complainants and Appellants.
NOT TO BE PUBLISHED
Raymond and Eric Steffen appeal from orders granting a special motion to strike their cross-complaint as a SLAPP suit and for attorney fees. We affirm.
BACKGROUND
The Steffens owned a residence at 3016 Pine Street, San Francisco, which they remodeled and placed on the market. They entered into an agreement to sell the residence, anticipating escrow would close on July 6, 2006. Shortly before escrow was due to close, Mark Welch, who owned property adjoining the Steffens property, filed a complaint alleging the Steffens had defaced a fence along Welchs property line by painting the side of the fence facing away from Welchs property and allowing the paint to drip over onto the other side of the fence, and by cutting back or removing vegetation along the fence, asserting the vegetation constituted fixtures on Welchs land. On June 27, 2006, Welch sought to quiet title to his own property at 3018-3020 Pine Street, and also sought damages for trespass. On the same date, as required by Code of Civil Procedure section 761.010, Welch filed a notice of pendency of action (lis pendens) against 3016 Pine Street, San Francisco, the Steffens property.
All statutory references are to the Code of Civil Procedure. Section 761.010, concerning actions to quiet title, provides in subdivision (b): "Immediately upon commencement of the action, the plaintiff shall file a notice of the pendency of the action in the office of the county recorder of each county in which any real property described in the complaint is located."
The Steffens filed a motion to expunge the lis pendens, asserting, among other things, Welch had made no claim against the Steffens property, but was instead complaining of the Steffens action in connection with his own property. The Steffens also filed a cross-complaint for intentional interference with contract, complaining Welch had filed the lis pendens for the sole purpose of clouding title to their property so as to interfere with their ability to market it. Raymond Steffens filed a declaration asserting that the cloud to the title to their property caused by the lis pendens was delaying the sale of the property. He acknowledged that the buyers had agreed to close escrow on condition the Steffens agreed to indemnify them for any claims asserted by Welch, but pointed out that every day of delay caused the Steffens to lose money.
The trial court denied the motion to expunge the lis pendens, but also ordered Welch to post a bond in the amount of $15,000. A few days later, Welch filed a special motion to strike the Steffens cross-complaint pursuant to section 425.16, asserting the cross-complaint was a strategic lawsuit against public participation (SLAPP). The trial court granted the motion on August 29, 2006, and on November 28, 2006, granted Welchs motion for attorney fees, ordering the Steffens to pay Welchs attorney fees and costs in the amount of $13,960.45. In the meantime, Welch withdrew the lis pendens, later explaining he had done so because the new owners of 3016 Pine Street had signed a verified statement confirming Welch owned the fence.
The Steffens appeal from the orders granting the special motion to strike and awarding attorney fees and costs to Welch.
Welch died on April 30, 2007. We have accepted notice of the substitution of the administrator of his estate, Robert Huberman, as a party to these proceedings, treating it as a motion and granting it. (Cal. Rules of Court, rule 8.36.)
DISCUSSION
Special Motions to Strike
Section 425.16 provides, "A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) "Resolution of an anti-SLAPP motion `requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendants] right of petition or free speech under the United States or California Constitution in connection with a public issue," as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. [Citation.]" (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) We independently review the trial courts order granting the special motion to strike. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 (Rusheen).)
For purposes of the first step, the question is whether Welchs conduct in filing the lis pendens—the gravaman of the Steffens claim of interference with contract—is an act taken in furtherance of Welchs right of petition or free speech. Section 425.16, subdivision (e)(2) explains that for purposes of the statute, an act " `in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue "includes "any written . . . statement . . . made in connection with an issue under consideration or review by a . . . judicial body." " `A cause of action "arising from" defendants litigation activity may appropriately be the subject of a section 425.16 motion to strike. [Citation.] `Any act includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.]" (Rusheen, supra, 37 Cal.4th at p. 1056.) When Welch filed the lis pendens, he filed a written statement in connection with the quiet title action under review by the trial court. It follows that the cross-complaint asserted a cause of action arising from an act in furtherance of Welchs right of petition or free speech.
For purposes of determining whether filing the lis pendens was an act subject to the anti-SLAPP statute, it is irrelevant that it might have been filed for an improper purpose. Although the Supreme Court has found a defendant is not entitled to the protections of the anti-SLAPP statute if the defendant concedes, or the evidence establishes conclusively, that the assertedly protected petition or speech activities were illegal as a matter of law (Flatley v. Mauro (2006) 39 Cal.4th 299, 305), Welchs conduct, even if wrongful, was not illegal as a matter of law.
The remaining question is whether the Steffens established a probability they would prevail on their claim. " `In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must " `state[] and substantiate[] a legally sufficient claim. " [Citations.] Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." [Citations.] [Citation.]" (Rusheen, supra, 37 Cal.4th at p. 1056.)
A legally recognized privilege cannot be the basis of an action for intentional interference with prospective business advantage. (Woodcourt II v. McDonald Co. (1981) 119 Cal.App.3d 245, 249 (Woodcourt II); Brody v. Montalbano (1978) 87 Cal.App.3d 725, 738; Lowell v. Mothers Cake & Cookie Co. (1978) 79 Cal.App.3d 13, 20.) Civil Code section 47 provides, in relevant part, that a privileged publication is one made in any judicial proceeding. (Civ. Code, § 47, subd. (b).) The filing of a lis pendens is privileged irrespective of the motive for its filing or whether it was filed in bad faith. (Woodcourt II, supra, at pp. 249-251; Albertson v. Raboff (1956) 46 Cal.2d 375, 379 (Albertson).) The affected party is not left without remedy because it can always seek relief by means of a motion to expunge the lis pendens, reviewable by writ of mandate. (Woodcourt II, supra, at p. 251.)
The only exception is set forth in Civil Code section 47 itself, which in subdivision (4) (added after the decisions in Albertson, supra, 46 Cal.2d 375 and Woodcourt II, supra, 119 Cal.App.3d 245), 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 or required by law." The lis pendens filed here did identify an action previously filed with a court of competent jurisdiction that affected title or right of possession of real property as required by law: Welchs complaint to quiet title. The filing therefore is not subject to the exception. We recognize the Steffens are contending that the lis pendens should have been filed against Welchs own property, but we see nothing in Civil Code section 47, including subdivison (4), that supports the argument that a lis pendens, filed in connection with an action to quiet title, is unprivileged because it identifies the wrong property or is flawed in some other way. That the filing is in some way defective is something that can be addressed by a motion to expunge, reviewable by writ of mandate (§ 405.39), but it has no effect on the privileged nature of the publication.
We take no position here as to whether the trial court erred in denying the motion to expunge.
CONCLUSION
The judgment is affirmed.
We concur:
SWAGER, J.
MARGULIES, J.