Metropolitan News-Enterprise


Tuesday, October 27, 2020


Page 3


Filing of Successive Invalid Liens Is Protected Activity, C.A. Declares

Opinion Says First Prong of Anti-SLAPP Statute Can Be Met Without Showing Conduct Was Lawful


By a MetNews Staff Writer


A subcontractor sued for filing multiple invalid mechanics’ liens for work it performed on a luxury hotel in downtown San Diego only had to show its activity was protected and not necessarily lawful for an anti-SLAPP motion to lie, Div. One of the Fourth District Court of Appeal has held.

The opinion by Justice William Dato, filed Friday, affirms orders by San Diego Superior Court Judge Gregory W. Pollack granting a special motion to strike under the anti-SLAPP statute, Code of Civil Procedure §425.16, as well as awarding fees and costs to Ehmcke Sheet Metal Corp. of National City.

“The filing of a mechanic’s lien constitutes protected activity, even if the lien was invalid or otherwise improper,” Dato said.

He explained that the plaintiff “erroneously imports substantive requirements of the litigation privilege into the first step of the anti-SLAPP inquiry,” which is a determination as to whether the conduct triggering the lawsuit is of a protected nature.

“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,” Dato wrote.

The filing of liens, he said, “is protected as conduct preparatory to or in anticipation of litigation,” declaring:

“No additional showing was required to Ehmcke to satisfy its moving burden.”

He said the plaintiff failed to meet its burden under the statute’s second prong—showing the probability of prevailing on the merits—justifying the granting of the anti-SLAPP motion.

The case is RGC Gaslamp v. Ehmcke Sheet Metal, 2020 S.O.S. 4999.


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