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Physical Division of Property Does Not Necessarily Equate to Division Under the Subdivision Map Act

Save Mount Diablo v. Contra Costa County involved the question of whether an imminent domain taking which physically splits an existing parcel into several non-adjacent pieces constitutes a subdivision of the original parcel under the Subdivision Map Act, thus allowing a would-be developer to forego the often onerous requirements of the Subdivision Map Act.


The property in question consisted of a large undeveloped tract off Vasco Road in Eastern Contra Costa County. Historically, the tract had been recorded as a single parcel and used for agricultural purposes, but in the mid-1990s the Contra Costa Water District (“District”) acquired two narrow intersecting strips of land by eminent domain for an underground pipeline and to relocate Vasco Road, respectively. The District’s acquisition of the strips in fee left a remaining property consisting of four irregularly shaped parts, each physically separated from the other parts by one of the strips owned by the District.


Nunn, the property owner who had purchased the property after the District’s acquisition of the strips, first attempted to subdivide the land using the parcel map process outlined in the Subdivision Map Act. After those efforts proved unsuccessful, Nunn changed course and instead sought a certificate of compliance from the County. While the County initially denied the request at the planning staff level, the matter was brought before the Planning Commission, which reversed the staff’s decision. The County Board of Supervisors eventually agreed with the Planning Commission and issued four certificates of compliance (i.e., one for each physically separated portion of the property) certifying that the four newly created parcels complied with the Subdivision Map Act.


Save Mount Diablo (“SMD”) filed suit, petitioning the Court for a Writ of Mandate requiring the County to set aside the four certificates of compliance. The trial court granted SMD’s petition and the Court of Appeal, First Appellate District, affirmed. The Court first examined the purpose of, and procedures mandated under, the Subdivision Map Act’s requirements for creation of a new legal parcel. Next, the Court considered Nunn’s main argument, that the District’s physical division of the Property by acquiring the strips traversing the Property constituted a “division” under the act. While Nunn contended that the District had effectively divided the Property because the result was four non-contiguous “parcels,” the Court disagreed.


While the Court agreed that the District’s acquisition of the strips physically divided the Property, such that a person would need to traverse the District’s property in order to travel from one portion of the Property to another, the physical division of the property by imminent domain did not constitute a division of the Property under the Subdivision Map Act. On this issue, the Court found that a physical division of property was not determinative, but that the key issue was whether the newly created parcels complied with the Subdivision Map Act. The Court noted that a division within the meaning of the Subdivision Map Act is not established merely because parts of a property do not touch. In reaching its holding, the Court looked a California Attorney General opinion which advanced the notion that the term “contiguous” could be used to not only denote two things which are in physical contact, but could also be used in this context describe two things which are “nearby.” The Court ultimately held that despite being separated by strips running across the Property, the portions of the Property were still contiguous and, therefore, no division had taken place.


The takeaway from this case: The Court was likely influenced by equitable considerations, as evidenced by the reference to Nunn’s predecessor’s receipt of almost $1 million from the District to compensate for the taking of the two strips of land and the fact that the remaining pieces of the Property were still easily accessible.


Save Mount Diablo v. Contra Costa County (Nunn) (2015) 14 C.D.O.S. 11084


SB800 Right to Repair Act Determined to Be Exclusive Remedy for Residential Construction Defect Cases

The Fifth Appellate District of the California Court of Appeal recently held that SB800 (otherwise known as the “Right to Repair Act” and codified at Civil Code sections 895 through 945.5) is the only remedy available to homeowners for residential construction defect claims against builders. (McMillin Albany LLC v. Superior Court)


In so holding, the court rejected the reasoning and outcome of the 2013 decision by the Fourth Appellate District in Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC, which allowed for common law remedies outside SB800 when the defective conditions caused actual damage to property. (The Fifth Appellate District covers nine counties in central California:  Fresno, Kern, Kings, Madera, Mariposa, Merced, Stanislaus, Tulare and Tuolumne. The Fourth Appellate District covers six southern California counties: San Diego, Imperial, Orange, San Bernardino, Riverside and Inyo.) Given the split of authority, the issue may now be ripe for review by the California Supreme Court.


Both cases examined the legislative history of the Right to Repair Act. Enacted in 2002, the Act established a mandatory process to manage residential construction defects prior to litigation. The Act set forth building standards, the violation of which constitute construction defects. Prior to litigation, homeowners must follow certain notification procedures and builders must be permitted to inspect, test, and offer to repair the defects. The Act also prescribes statutes of limitations, affirmative defenses, and recoverable damages.


The Act sought to abrogate the 2000 decision in Aas v. Superior Court, in which the California Supreme Court held that construction defects in residential properties must cause actual property damage or injury prior to being actionable. The Act, by contrast, was intended in part to grant statutory rights where construction defects caused economic damage alone. The Act made major changes to the law governing construction defects, and sought to respond to builders and insurers concerned about litigation costs as well as giving homeowners the ability to have defects identified and corrected before they caused actual harm.


The Liberty Mutual case had interpreted the Act to not eliminate the property owner’s common law rights and remedies where actual damage occurred as a result of the defect. The more recent McMillin decision however undertook a more comprehensive analysis of the Act and concluded that the “groundbreaking reform” and “major changes” intended by the Legislature did not allow for the Act to be optional. The implications of the recent case for home builders are that claimants will have to comply with the Act before filing suit and will arguably have shorter time periods in which to do so.


McMillin Albany LLC v. Superior Court (2015) 14 C.D.O.S. 9696


Courts May Not Consider Prejudice to Liable Party in Granting Rescission of Purchase Contract

After the Wongs bought a $2.35 million home, they discovered that they and 12 of their neighbors were connected to a private sewer system rather than the city of San Carlos’s public system.  The Wongs had remodeled the home, expending about $300,000.  They sued the sellers (Wong v. Stoler) for non-disclosure, seeking, among other things, rescission.  They also sued the real estate agents involved, and settled with them for $200,000.  The trial court found the sellers recklessly misrepresented that the house was connected to a public sewer system, but it declined to effectuate the rescission, which would have returned the home to sellers and refunded the purchase amount to the Wongs.  The court reasoned that doing so would place an undue burden on the sellers, who had already used the sales proceeds to purchase a new home and finance improvements, and that it would be too complicated to unwind the deal.  Instead, the court ordered the sellers to pay the Wongs for sewer maintenance and repair costs beyond the $200,000 settlement until 10 years had passed or the Wongs sold the house, whichever came first.


Rescission extinguishes the contract and restores the parties to their former positions, or as near as possible to their positions before entering into the contract.  If the court agrees there are grounds for rescission, the rescinding party is entitled to recover “complete relief,” including damages and the return of benefits provided.  In real estate cases, this means the seller must refund the purchase price to the buyer in exchange for return of the property.  If the court finds the contract has not been rescinded, it may grant other relief appropriate under the circumstances.


Here, the Court of Appeal, First Appellate District, reversed the San Mateo County Superior Court, finding that the contract was rescinded and the court improperly considered prejudice to the sellers. In refusing to effectuate rescission, the remedy fashioned by the trial court was not “complete.”  The trial court also improperly relied upon the hardship rescission would cause to the sellers, who had just been found liable for negligent misrepresentation, a species of fraud.  The need for rescission was effectively the fault of sellers, who as a result of their failure to disclose “must sustain the necessary inconveniences thereby entailed.”  Moreover, although untangling the sale might not be easy, there were not insurmountable obstacles to doing so.  Thus, the case was remanded to effectuate the rescission and award any other consequential damages (such as real estate commissions, escrow payments, interest on sums paid to the other party, and costs of improvements) needed to return the Wongs to the status quo. The court was also directed to determine whether the Wongs were entitled to attorney’s fees as part of their complete relief.


Wong v. Stoler (2015) 14 C.D.O.S. 6633


Court Liens Away From Coverage in Title Insurance Case

Most real estate investors, and real property attorneys for that matter, think they know a lien when they see one. In a late December decision which was recently certified for publication (so it can now be cited as precedent in California), the California Court of Appeal for the Third Appellate District reminded one and all that the determination of whether a recorded document constitutes a defect, lien or encumbrance against title may require deeper analysis.


In Stockton Mortgage v. Tope, the Court reviewed the San Joaquin County trial court’s granting of First American Title Insurance Company’s summary judgment motion. First American had been sued by Stockton Mortgage under various theories for refusal to defend and indemnify Stockton Mortgage in a lawsuit brought by real estate investors. Stockton Mortgage contended that a “Notice of Abatement Action” recorded against the property by the County Environmental Health Department in 2004 pursuant to Health & Safety Code §17985 was covered by First American’s 2005 title insurance policy. The Notice at issue addressed the property’s substandard physical conditions, including 26 separate structural, mechanical, electrical and plumbing violations.


Alliance Title, acting as escrow for the transaction, attempted to resolve the issue, paying the County’s then current enforcement costs of $2,005. The County refused to issue a release because the underlying violations had yet to be cleared but escrow closed anyway.


In one of the principal issues decided by the case, the Court of Appeal upheld the trial court’s granting of First American’s summary judgment on the basis that the Notice related to physical condition of the property, which related to the value of the property rather than the marketability of its title. In other words, the Notice was not a lien or encumbrance because the property could be transferred without doubt as to who owns or has an interest in it. The Court reminded that “one can hold perfect title to land that is valueless; one can have marketable title to land while the land itself is unmarketable.” The Court relied heavily on a 2002 case involving similar issues. (Elysian Inv. Group v. Stewart Title.)


Importantly, the Court also followed longstanding authority which holds that no liability exists for statements issued in a Preliminary Report as it is neither an insurance contract nor a representation of the title. (Ins. Code §12340.11.)


While this case did not change existing law, it is notable that the Court was able to distinguish the obligations, and perhaps the mistakes, of the escrow holder versus the title insurer.


Stockton Mortgage, Inc. v. Tope (2015) 233 Cal.App.4th 437


Damages for Wrongful Foreclosure Not Necessarily Limited to Lost Equity

The recent case of Miles v. Deutsche Bank involves the measure of damages for wrongful foreclosure. In 2005, plaintiff refinanced the loan on his home in Riverside with an adjustable rate mortgage serviced by HomeEq. Plaintiff made regular payments until the rate increased in 2007 and then sought a loan modification. In early 2008, HomeEq agreed to modify the loan terms in exchange for a lump sum payment. Both parties signed the modification agreement and plaintiff made the first payment, but HomeEq then refused to honor the agreement.


Plaintiff continued for a time to make monthly payments but HomeEq kept revising the agreement terms and demanding more lump sum payments to modify the loan. When plaintiff insisted on the terms of the original agreement, HomeEq recorded a notice of default and then a notice of trustee’s sale. Plaintiff obtained a court order temporarily preventing the sale of the home in 2009, but defendants proceeded with the sale and evicted plaintiff.


Plaintiff sued HomeEq and Deutsche Bank, which owned the loan. The trial court in Riverside County without explanation sustained defendants’ demurrer to causes of action for breach of contract, fraud and negligent misrepresentation. The court also granted defendants’ motion for summary judgment on the remaining cause of action for wrongful foreclosure, finding that plaintiff had no equity in the property and thus could not prove damages. The Court of Appeal, Fourth Appellate District, reversed both rulings.


The court first rejected the argument that plaintiff’s failure to attach a copy of the contract or plead its terms verbatim was fatal to the breach of contract claim. The correct rule is that a plaintiff may plead the legal effect of the contract rather than its precise language.


On the fraud and negligent misrepresentation claims, defendants argued they could not lie where, as here, the representations pertained to future events and thus there could be no prior knowledge that assertions were untrue. The court rejected the argument, finding that such claims could be based on making promises, here to modify the loan, but having no intent to actually perform. The court also rejected the argument that the claims lacked specificity for failing to identify the specific misrepresentations and the persons who made them, finding that such information was more likely in the possession of defendants.


With regard to the wrongful foreclosure claim, which requires “an illegal, fraudulent or willfully oppressive sale”, the court disagreed with the trial court’s conclusion that a plaintiff with no equity in the home cannot prove damages. Because wrongful foreclosure is a tort, the measure of damages includes “all the detriment proximately caused thereby” (see Civil Code § 3333), which in addition to lost equity the court noted might also include moving expenses, damage to credit, loss of rental income, personal injury including emotional distress, property damage and, upon a proper showing, punitive damages. The court made clear, however, that it was not suggesting any of these damages would be actually recoverable in the case, and noted that plaintiff’s damages, if any, might be entirely offset by the benefit of being free of an underwater loan.


After the events giving rise to this lawsuit, the legislature enacted a statutory cause of action to recover damages for wrongful foreclosure, codified at Civil Code sections 2924.12(b) and 2923.6(c)(3), but the court took no position on whether this impacts the common law tort action.


Plaintiffs’ Bar may attempt to rely on this case to seek broad damages in all real estate tort actions, but given other applicable case law, the scope of this particular ruling is arguably limited to instances where a party illegally, fraudulently or with willful oppression exercises a right to foreclose on property, evict an occupant, or both.


Miles v. Deutsche Bank Nat’l Trust Co. (2015) 236 Cal.App.4th 394


Whether an Issue Is Arbitrable Is Determined Solely by Language in Arbitration Agreement

The Bunker Hill v. U.S. Bank case involved a rather dry, but nonetheless important issue which may have an impact on real-world situations: when arbitration may be compelled pursuant to an arbitration agreement between two parties, and more specifically, what kinds of issues may be arbitrated.


Landlord Bunker Hill owned land in Los Angeles County.  It leased the land to U.S. Bank, who owns five low-rise buildings on the parcel.  The parties are governed by a 99-year ground lease, which expires in 2077.  When the lease is terminated (either in 2077 or at some point before then), the buildings and other improvements on the property become the property of Bunker Hill.  The lease also allows U.S. Bank to sublet the property, which it did.


A dispute arose between the parties over the amount of rent, which was adjusted in April of 2013.  They went to arbitration pursuant to an arbitration provision in the lease.  During the arbitration, a related issue arose: whether, upon termination of the lease, the subleases would terminate or whether Bunker Hill would take title to them.  That issue was not resolved during the arbitration, but the parties continued to correspond about it.  After a while, U.S. Bank invoked the arbitration provision again and demanded arbitration to resolve the issue.


After a few months of conferring, U.S. Bank made several acknowledgements which, in its view, made arbitration on the sublease issue unnecessary.  Bunker Hill pressed its position that arbitration was necessary to eliminate uncertainty which may arise when the lease ends.  U.S. Bank responded that the issue was “purely hypothetical.”


Bunker Hill filed a petition to compel arbitration with the court, stating that there was presently a dispute between the parties regarding their respective rights and obligations under the ground lease.  U.S. Bank opposed on the grounds that there was no justiciable controversy, and therefore, in essence, there was nothing to arbitrate.  The trial court agreed with U.S. Bank and denied the motion.  Bunker Hill appealed.


The appellate court held that the usual requirements of justifiability and ripeness, which are required before a court can hear a case, do not necessarily apply in arbitration.  The language in the arbitration agreement or provision is what governs what can and cannot be arbitrated.  Contracting parties are free to negotiate and restrict the powers of an arbitrator and the “universe of issues that he or she may resolve,” as the powers of the arbitrator are derived from and limited by the arbitration agreement.  In this case, the provision broadly obligated the parties to arbitrate “any and all disputes, controversies or claims arising under or relating to the Ground Lease.”  As the lease did not define these terms, the court interpreted them in their “ordinary and popular sense,” and concluded that the sublease issue was plainly included, as it was an “unresolved dispute which both arises under and relates to the ground lease.”


Bunker Hill Park Ltd. v. U.S. Bank, N.A. (2014) 231 Cal.App.4th 1315


No Duty to Disclose Claim of Easement to Prospective Purchaser of Adjacent Property

The Hoffman v. 162 North Wolfe case involved claimed prescriptive easements over commercial property in Sunnyvale. In March 2010, Hoffmans purchased property at 170 North Wolfe (“170”). At the time of the purchase, Hoffmans were tenants of 170 and were thus familiar with that property and the adjacent property at 162 North Wolfe (“162”). After close of escrow, the owner of the adjacent property, 162 LLC, notified Hoffmans that they claimed a landscape easement and prescriptive easement rights of ingress and egress over 170. Thereafter, 162 LLC sued Hoffmans to quiet title to the landscape easement and prescriptive easement rights.


In an interesting twist, Hoffmans cross-complained against 162 LLC for fraud, alleging (among other things) that 162 LLC should have disclosed their claims or interest with respect to the disputed area and that its members had falsely told them that they had no claims. Hoffmans claimed that eight months before close of escrow they complained to Jonathon Owens, one of 162 LLC’s members, that vehicles servicing 162 were crossing over onto 170, and that Owens said he “would take care of it.” Notwithstanding this alleged conversation, the vehicles continued to cross onto 170 but the Hoffmans failed to raise the issue again.


The Santa Clara County trial court granted summary adjudication of Hoffmans’ on grounds that, without a preexisting relationship, 162 LLC had no duty to affirmatively disclose anything to Hoffmans. On both causes of action, the trial court found that the Hoffmans hadn’t justifiably relied on 162 LLC’s actions or inactions. The Court of Appeal for the 6th District upheld the trial court’s ruling.


On the concealment (fraudulent non-disclosure) cause of action, the Court of Appeal rejected Hoffmans’ claim that the parties’ mutual interest in purchasing 170 constituted a “preexisting relationship” sufficient to warrant a duty of disclosure. The Court found “no evidence in the record that 162 LLC or its members had any relationship with the Hoffmans.”


The Court went on to find that even if 162 LLC had owed Hoffmans a duty to disclose their easement claims prior to close of escrow, the Hoffmans’ fraud claims failed because they could not establish reliance. In order to satisfy the reliance element of actionable fraud, the purported reliance must be reasonable or justified. The Court first found that Steven Hoffman’s status, sophistication and experience was relevant to the determination of reasonable reliance. Hoffman was an “experienced real estate agent who had owned several businesses and owned several pieces of real property.” The Court explained that it was unreasonable as a matter of law for someone of Hoffman’s sophistication and experience to take no action, and fail to even make any further inquiry, while observing the tenants of 162 drive over the disputed area for eight months which was a “common occurrence” as the Hoffmans admitted at deposition.


On the fraud claim, while the Court appeared quite dubious of the Hoffmans’ argument that Owens’ statement that he “would take care of it” constituted an actionable promise, since it might be too vague to be enforceable even if it constituted a promise, the Hoffmans could not in any event establish reasonable reliance as a matter of law based on the analysis above.


This case is perhaps most interesting for what it did not do – the Court resisted the attempt to extend disclosure rules to third parties without any preexisting relationship. Requiring the owners of neighboring properties to essentially become part of their neighbor’s real estate transaction would have had a long-reaching, and potentially devastating, impact on almost every real estate transaction in California.


Hoffman v. 162 North Wolfe (2014) 228 Cal.App.4th 1178.


First District Court of Appeal Takes A Bit of the Bite Out of the Merger Doctrine

In Ram’s Gate Winery, LLC v. Roche, Ram’s Gate bought a Sonoma County property intending to build a new winery. The sellers (Roches) had agreed in the purchase agreement to disclose facts having a “material effect on the value of the ownership or use of the Property,” including geological hazards.


After escrow closed, Ram’s Gate discovered an active fault trace on the property that substantially increased the cost of development, and sued the Roches for, among other things, breach of contract. The trial court granted summary adjudication in favor of the Roches on the breach of contract action finding that the warranties in the purchase agreement had “merged” with the recording of the deed and thus did not survive the close of escrow – the “merger doctrine.” The Roches were awarded their attorneys’ fees and costs, and Ram’s Gate appealed.


The general rule, long recognized in California, is that “where a deed is executed in pursuance of a contract for the sale of land, all prior proposals and stipulations are merged, the deed is deemed to express the final and entire contract between the parties.” (Bryan v Swain (1880) 56 Cal. 616, 618.) Thus, any and all previous duties of disclosure, unless specifically stated in the deed, are extinguished and deemed to have “merged” into the deed.


Historically, the merger doctrine has been criticized for its inherent unfairness. For example, in Ram’s Gate, the trial court ruled that “When the contract [i.e., deed] does not provide that the representations and warranties survive the closing of the transaction, [they] are treated as extinguished as of the closing date, and cannot thereafter give rise to liability.” As such, even though the Roches allegedly knew about the fault trace prior to closing, their duty to disclose this alleged material defect was extinguished because the duty was not specifically stated in the deed that was recorded at the close of escrow – if applied, a harsh result.


The First District Court of Appeal reversed, finding the merger doctrine “not as broad and absolute as some abbreviated statements of the doctrine might indicate.” “The crucial issue in determining whether there has been an integration is whether the parties intended their writing to serve as the exclusive embodiment of their agreement.”


The Court agreed “with those courts which have limited application of the merger doctrine to circumstances where the contractual terms are inconsistent with the deed, or where the parties clearly intend to have all contractual obligations subsumed by the recitals of the recorded deed.” This formulation mitigates the potential unfairness resulting from strict application of the merger doctrine.


Thus, whether the merger doctrine applies should be decided now based on (1) an analysis of the deed in comparison with, and in the context of, the prior contract to discern whether the contractual terms are inconsistent with the deed, and (2) examination of the parties’ intent as to whether the provisions of the prior agreement continue in force after the transfer of title.


Applying the above formulation to the case before it, the Court found that from the face of the deed there was no “obvious conflict” between the purchase agreement and the terms of the deed which would show that the disclosure warranty was merged into the deed. As such, the merger doctrine would not be applied.


Turning to the second prong – the parties’ intent – the Court found that the manager’s declaration established that Ram’s Gate believed the warranties and disclosure duties would continue after close of escrow. The declaration should therefore have been considered in determining the parties’ mutual intent on the integration and survival issue, which raised a factual issue to be determined at trial. Because there was a triable issue of fact as to the parties’ intent, the merger doctrine would not be applied in this case.


In the end, the Court took some of the sting out of a draconian and sometimes harsh law – the merger doctrine. As a result, courts are now permitted to examine both the purchase agreement and the deed side-by-side to determine if the contract terms are inconsistent with the deed. Courts are also permitted to accept extrinsic evidence to determine whether the parties’ intended all prior representations and warranties to be extinguished and “merged” into the deed at the time of closing.


Ram’s Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071


Actual Damage of Agricultural Property Needed for Award of Attorneys’ Fees in Trespass Case

Belle Terre Ranch, Inc. v. Wilson (2015) 14 C.D.O.S. 371


The dispute in this case involved the interpretation of a law providing that when someone brings suit for trespass on agricultural, ranching or farming land and wins, the plaintiff is entitled to attorneys’ fees and costs. (Code Civ. Proc. § 1021.9.) This law, passed in 1986, was intended to allow ranchers and agricultural landowners a way to recover for damage caused by trespassers breaking through fences to take motor vehicles onto private property.


The issue in this case was whether a pathway, or “avenue” between two neighboring properties in Sonoma belonged to one neighbor—a winery, owned by the Wilsons—or the other—a vineyard, Belle Terre. Both neighbors used the avenue, with the Wilsons using it for wine deliveries and to allow access for heavy equipment during renovation. A dispute arose over the Wilsons’ use of the avenue, with Belle Terre complaining that the trucks were kicking up too much dust and damaging the grapes. Belle Terre sued the Wilsons to quiet title to the disputed strip of land and for trespass, for a permanent injunction to prevent the Wilsons from using the avenue, and for attorneys’ fees and costs for bringing the lawsuit. Belle Terre did not allege any actual injury to the property arising out of the trespass, nor did it present proof of the same.


After testimony by surveyors hired by each party, the trial court quieted title of the avenue in favor of Belle Terre, granted the permanent injunction, awarded $1 in nominal damages for the trespass, and awarded Belle Terre $117,000 in attorneys’ fees and costs. The appellate court considered whether an award of a nominal amount for trespass entitled Belle Terre to attorneys’ fees and costs, when there was no proof of actual injury to Belle Terre’s property.


The appellate court reversed the trial court’s award of attorneys’ fees and costs. This dispute was primarily one over property lines, upon which the trespass claim depended, not truly “an action to recover damages to personal or real property resulting from [trespass],” for which the law was intended. Therefore, although the Wilsons technically trespassed onto Belle Terre’s property which justified nominal damages,[1] there was no evidence of any actual damage; thus, an award of attorneys’ fees was not proper.


Belle Terre won, in the sense that the Wilsons are no longer permitted to use the avenue, but it could not recover the money they spent litigating the dispute. Landowners of property used or intended for cultivation or livestock should take this into consideration when pursuing a boundary dispute which has incidental trespass claims, especially in rural areas where the boundary lines aren’t so clear.



[1] The court explained that nominal damages are merely symbolic, and are often awarded when there is no actual damage, but there was technically still a violation of the law. Such was the case here.


There Oughta Be a Law (And There is) – Anti-SLAPP 20 Years On

In 1992, the California legislature enacted a law to prevent the use of the judicial system to squelch public dialogue on important public issues. This law is commonly applied to cases involving constitutional free speech and petition, including statements made about or during litigation.


An action filed to silence one’s opponent is called a SLAPP suit—that is, a “Strategic Lawsuit Against Public Participation.” A party served with a SLAPP suit may file an “anti-SLAPP” motion to strike on the basis that the conduct was protected and there is no reasonable chance of prevailing on the merits. While many of the anti-SLAPP protections were already in place prior to the enactment, the statute allows a party to file a motion supported by evidence at the outset of the case.


Because either party may immediately appeal a ruling on an anti-SLAPP motion without having to wait until the end of the case, California appellate courts continue to issue many anti-SLAPP opinions, providing much-needed guidance to litigators. Two recent cases highlight the courts’ view of what constitutes protected conduct:


In Copenbarger v. Morris Cerullo World Evangelism, a sublessor served its sublessee a three-day notice to quit for breach of the sublease. In response, the sublessee sued the sublessor for various claims. The sublessor filed an anti-SLAPP motion, claiming that the sublessee’s complaint impinged on his right to serve the notice. The Fourth District Appellate Court held that although the service of the three-day notice may have triggered the complaint, it was not a SLAPP suit because it was not based on service of that notice, but rather based on the obligations to repair and maintain the property under the sublease. Accordingly, the anti-SLAPP motion to strike was properly denied. (Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237.)


In Castleman v. Sagaser, the Fifth District Appellate Court refused to extend anti-SLAPP protection to an attorney accused of selling out his client to spite his former law partner. In this case, Bratton, an attorney, sued his former law firm and client (Castleman) based on the encouragement of a former partner (Sagaser). Castleman cross complained against Sagaser for breach of the duty of loyalty owed to a former client while pursuing a personal vendetta against Bratton. Sagaser filed an anti-SLAPP motion, arguing that he consulted with Bratton only for the purpose of a partnership dispute with his former partner which was constitutionally protected activity. The court ruled that the claims, though involving protected litigation activity, were not protected because they were based on the allegation that Sagaser engaged in conduct inconsistent with his fiduciary obligations to Castleman, not based on his constitutionally protected speech or petition rights. (Castleman v. Sagaser (April 15, 2013) No. F064590.)


These cases remind litigants to carefully examine the conduct on which the complaint is based. While protected activity may have triggered a complaint, if the claims are not based on that protected activity an anti-SLAPP motion may not be successful. While anti-SLAPP motions do not always resolve a matter—as seen above—they are nevertheless very powerful tools for litigators in the proper case.