Metropolitan News-Enterprise


Monday, December 28, 2009


Page 1


C.A.: Lawsuit Over Lis Pendens a SLAPP

Justices Say Lawyers Did Nothing Wrong by Recording Notice in Easement Dispute


By SHERRI M. OKAMOTO, Staff Writer


This district’s Court of Appeal has ruled that two local attorneys had done nothing wrong in recording a lis pendens on a dominant tenement in an easement dispute and that the property owner’s lawsuit against them based on that filing was subject to a special motion to strike.

Div. Three explained Wednesday that the filing of a lis pendens in the course of a judicial proceeding is a protected activity and reversed Los Angeles Superior Court Judge Charles C. Lee’s order denying Gregory R. Ryan and Wayne B. Brosman’s anti-SLAPP motion.

Lee has since retired from the court.

Ryan and Brosman, of Ryan & Associates, represented the owners of the Heron Building, located at the corner of Sixth Street and Olive Street in downtown Los Angeles, near Pershing Square. The property is adjacent to the Oviatt Building, and they are separated by a 15-foot-wide private alleyway.

The alleyway is on the Heron’s property and provides the only means of access to the Oviatt’s trash receptacles and compactor.

In October 1985, the owners of the two properties entered into a 10-year contract allowing the Oviatt to use the alley. Even though the non-exclusive easement stated it was only to be used in an emergency, the Oviatt used the easement for access to the trash bins and continued to use it after the contract expired in 1995.

Brosman wrote to the owners of the Oviatt in 2005 threatening to deny all access to the alley if a new easement agreement were not reached.

New Agreement Declined

The owners of the Oviatt declined to enter into a new agreement and claimed a right to use the alley pursuant to a prescriptive easement and pursuant to a covenant running with the Heron building’s land, recorded in 1985. The owners also informed Brosman that the building was for sale.

Ryan and Brosman subsequently filed a verified complaint to quiet title on behalf of Heron’s owners against Oviatt and a notice of pending action against both properties.

Oviatt filed a verified cross‑complaint, a lis pendens with regard to the Heron property, and a motion to expunge the lis pendens that had been recorded on the Oviatt property.

Los Angeles Superior Court Judge Rolf M. Treu granted the motion to expunge, finding that the quiet title litigation did not involve title to, or possession of, the Oviatt property and that there was no real property claim justifying a lis pendens on that property.

Cross-Complaint Amended

Oviatt then amended its cross-complaint to allege causes of action for intentional interference with economic advantage and slander of title based on the allegation that the filing of the lis pendens on its property was wrongful and caused Oviatt to lose the sale of its property. 

Heron demurred to the intentional interference with prospective economic advantage and slander of title causes of action in Oviatt’s amended cross‑complaint, but Treu overruled the demurrer. He also denied Heron’s motion for summary adjudication of these issues. One of the appellate attorneys for Ryan and Brosman said that this case is still pending.

Oviatt filed a complaint against Ryan and Brosman in February 2008 for intentional and negligent interference with prospective economic advantage and slander of title based on the recording of the lis pendens on the Oviatt property which Treu had found to be improper.

Ryan and Brosman filed a special motion to strike the complaint, which Lee denied.

Filing ‘Squarely Covered’

Writing for the appellate court, Justice Richard D. Aldrich reasoned that the challenged act of filing the lis pendens was a writing made in a judicial proceeding that was not illegal as a matter of law and therefore was “squarely covered” by the anti-SLAPP law’s protections.

He also noted that pursuant to Kendall-Brief Co. v. Superior Court (1976) 60 Cal.App.3d 462, the existence or nonexistence of an easement over a servient tenement affects title to or right of possession of the dominant tenement as well as the servient one.

“Because a lis pendens affects the use of an easement upon or appurtenant to the property affected by the action, as a matter of law, attorneys Ryan and Brosman were entitled to file, on behalf of Heron, the lis pendens on the Oviatt property as they were asserting a real property claim,” Aldrich said.

As the filing of the lis pendens was a protected activity and involved a real property claim, and since Oviatt had made no argument that the lis pendens lacked merit for any other reason, Aldrich concluded that recordation of the lis pendens could not be the basis for an intentional interference with prospective economic advantage or slander of title causes of action, even if the attorneys acted with malice.

 In the unpublished segment of his decision, Aldrich explained that the doctrine of collateral estoppel did not preclude the attorneys from addressing the validity of the lis pendens in this cause of action because Treu’s ruling had been based upon misrepresentations as to both parties that there was no legal authority in California discussing the propriety of recording a lis pendens on a dominant tenement in an easement dispute.

Under such circumstances, Aldrich opined that it would be “inherently unfair to conclude that the orders rendered by Judge Treu, including the expungement order, conclusively establish that the lis pendens was illegal as a matter of law and thus, it is inappropriate to bind attorneys Ryan and Brosman to those rulings.”

Justices H. Walter Croskey and Patti S. Kitching joined Aldrich in his decision.

Roy G. Weatherup, Bartley L. Becker and Barry Zoller of Lewis Brisbois Bisgaard & Smith represented Ryan and Brosman, while Bryan J. Freedman, Jacqueline C. Brown and Bradley H. Kreshek of Freedman & Taitelman represented the Oviatt.

Weatherup said the decision “clarifies the laws related to easements and lis pendens” and “will essentially prove that the judge in the underlying case was in error when he found that the filing of the lis pendens was improper.”

He posited that the appellate court’s decision “solves both these cases,” because “once you take away that ruling [on the propriety of the filing], the whole remaining case disappears.”

Ryan opined that the decision “is basically telling us we did the right thing.” He said that real estate lawyers “are stuck between a rock and a hard place” because they are statutorily required to file lis pendens, but opposing counsel often responds by filing a slander of title claim. “How can we do our job if we’re going to be terrorized like this,” Ryan asked.

Also, if a lis pendens is expunged “does that mean you get to automatically sue the lawyer?” Ryan queried. “I think the court said no.”

Counsel for the Oviatt did not return calls for comment.

The case is Park 100 Investment Group II  v. Ryan, B208189.


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