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Alpha and Omega Development, Lp v. Whillock Contracting

November 2, 2011

ALPHA AND OMEGA DEVELOPMENT, LP, PLAINTIFF AND APPELLANT,
v.
WHILLOCK CONTRACTING, INC., DEFENDANT AND RESPONDENT.



APPEAL from an order of the Superior Court of San Diego County, Joel M. Pressman, Judge. (Super. Ct. No. 37-2010-00086482-CU-MC-CTL)

The opinion of the court was delivered by: Benke, Acting P. J.

CERTIFIED FOR PUBLICATION

Affirmed.

Alpha and Omega Development, LP (Alpha), appeals from an order of the trial court granting pursuant to Code of Civil Procedure*fn1 section 425.16 the special motion to strike (e.g., anti-SLAPP motion*fn2 ) of Whillock Contracting, Inc. (Whillock), to a cause of action for slander of title concerning real property once owned by Alpha.

Alpha contends the trial court erred in granting Whillock's anti-SLAPP motion because Alpha met its burden of demonstrating a probability of prevailing on the merits, as required under the second prong of the anti-SLAPP statute. As we explain, we disagree and affirm the trial court's order.

OVERVIEW

Before addressing the main issue in this case, we first discuss what is not in issue in this appeal. The record shows Alpha's first amended complaint (FAC) against, among others, Whillock*fn3 asserted causes of action for slander of title and malicious prosecution. The trial court granted Whillock's anti-SLAPP motion as to both causes of action, but on appeal Whillock challenges only the trial court's order as it pertains to slander of title.

In addition, Alpha understandably*fn4 conceded in the trial court and again on appeal that Whillock satisfied its burden to show the slander of title cause of action arose from its furtherance of rights of petition or free speech within the meaning of section 425.16, subdivisions (b)(1) and (e). Thus, the parties agree the burden then shifted to Alpha to demonstrate a probability of prevailing on its slander of title claim. (See § 425.16, subd. (b); see also Price v. Operating Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970.)

A. Underlying Action

Alpha's action against Whillock was based on the latter's unsuccessful action to foreclose a mechanics' lien that Whillock recorded on real property located at 1453 Fourth Avenue and at 1446 Fifth Avenue, San Diego (together, subject real property). Whillock filed its action against Alpha in 2007 in San Diego County Superior Court, case No. GIC880872 (Whillock Contracting, Inc. v. Alpha and Omega Development, LLC (the underlying action)) after Alpha obtained title to the subject real property.

Whillock alleged in the underlying action that it was owed about $1.48 million in unpaid, construction-related services it had rendered in 2004 and 2005 in connection with the development of about 72 condominium units and seven retail spaces on the subject real property. Whillock further alleged that after Alpha acquired the subject real property, at the "special request" of Alpha it continued to supply all requested services, labor, materials and equipment on and to the subject real property, "including but not limited to demolition work, grading work, excavation work, supply of trailer rentals, supply of safety barricades and walkways, supply of temporary electrical power equipment, supply of temporary fencing, and supply of storage containers."

Alpha filed a motion to expunge the lis pendens, which the trial court granted. At the same time, the trial court denied Alpha's motion for judgment on the pleadings in connection with Whillock's cause of action for foreclosure of mechanic's lien.

Alpha subsequently defaulted on its loan, which was secured by a deed of trust on the subject real property. The deed of trust was foreclosed and ownership was acquired by the holder of the deed of trust, Schaeffer Construction, Inc. Pension Plan (Schaeffer). Eventually, Whillock, Schaeffer (an intervenor in the underlying action) and Alpha settled and Whillock dismissed the underlying action with prejudice.

B. Current Action and Anti-SLAPP Motion

Alpha's complaint alleged Whillock "willfully, wrongfully, without justification[] and without privilege caused to be recorded a Lis Pendens against the [subject real property]" (italics added); that the recording of the lis pendens "directly impaired the vendibility and value of the [subject real property] on the open market while the real estate market in San Diego was rapidly declining"; and that as a result of the ...


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