Can You Be Sued for Filing a Partition Action?
A co-owner served with a partition action sometimes threatens to sue the co-owner who filed it, and that co-owner’s attorney too, claiming the case was filed to harass, to cloud title, or to force a sale. In California, that lawsuit almost always fails, and the co-owner who files it can be ordered to pay the other side’s attorney’s fees. Filing a partition action is an exercise of the right to petition the courts. Both the litigation privilege and the anti-SLAPP statute (short for “strategic lawsuit against public participation”) protect the co-owner who files and the attorney who files for them.
Five Reasons a Lawsuit Against the Partition Plaintiff or the Plaintiff’s Attorney Fails
- The litigation privilege. Civil Code section 47, subdivision (b) protects statements made in a judicial proceeding. That covers the partition complaint, the lis pendens recorded with it, and the attorney’s letters and court filings in the case. The privilege bars nearly every tort claim based on those acts, as explained below.
- The anti-SLAPP motion. Under Code of Civil Procedure section 425.16, a claim that arises from filing a lawsuit can be struck at the start of the case unless the person who brought it shows a probability of winning. The loser pays the winner’s attorney’s fees. The two steps of the motion are explained below.
- An attorney owes no duty of care to the other side. In Goodman v. Kennedy (1976) 18 Cal.3d 335, the California Supreme Court held that an attorney advising clients on a sale owed no duty of care to the buyers who dealt with those clients at arm’s length. A co-owner on the other side of a partition is in the same position. The plaintiff’s attorney represents the plaintiff, so a negligence claim by the defendant against that attorney has no duty to rest on.
- A conspiracy claim against the attorney needs a court order first. Under Civil Code section 1714.10, a party who wants to allege that an attorney conspired with a client must generally get the court’s permission before filing, by showing a reasonable probability of prevailing.
- Malicious prosecution is the one exception, and it rarely fits a partition. A malicious prosecution claim requires that the earlier case ended in the claimant’s favor, was brought without probable cause, and was brought with malice. Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863. It cannot be filed as a cross-complaint in the partition itself, because the claim does not exist until the partition ends in the defendant’s favor. Babb v. Superior Court (1971) 3 Cal.3d 841. That rarely happens, because the right to partition is absolute unless it has been waived (Code of Civil Procedure section 872.710), so the co-owner who files usually wins.
What a Co-Owner Can Do Instead
A co-owner who disagrees with the partition has real options that do not involve suing the plaintiff or the attorney. The co-owner can raise defenses to the partition in the answer, and can ask the court for credit for the mortgage, taxes, and improvements the co-owner paid. Those claims are decided inside the partition, as explained below.
How an Anti-SLAPP Motion Works: The Two Prongs
Anti-SLAPP statutes are meant to encourage public participation and prevent the justice system from being used as a weapon to prevent free speech. California’s anti-SLAPP statute states, in part, that: “it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” Cal. Civ. Proc. Code § 425.16. Furthermore, an anti-SLAPP motion must meet two distinct requirements: in the first step or prong, the defendant must show that the conduct underlying the plaintiff’s cause of action, or portions of the cause of action that are asserted as grounds for relief, arises from the defendant’s constitutional rights of free speech or petition. Cal. Code Civ. Proc. § 425.16(b)(1); see Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. In the second prong or step, the burden shifts to the plaintiff to prove that the plaintiff has a legally sufficient claim and to prove with “admissible evidence” a “probability” that the plaintiff will prevail on the claim. Navellier v. Sletten (2002) 29 Cal. 4th 82, 88–89.First Prong: Anti-SLAPP Statutes Preserve Attorneys’ Litigation-Related Activities
These anti-SLAPP requirements include protection from attempts to silence or otherwise prevent attorneys from petitioning the government, a quintessential tenet of free speech. As Rutter explains, an “attorney giving advice to client and corresponding with opposing counsel were ‘unquestionably protected activities’ under the anti-SLAPP statute.” Litigation-related activities broadly protected, Anti-SLAPP Litigation (The Rutter Group) § 3:31 (quoting Contreras v. Dowling (2016) 5 Cal.App. 5th 394). Rutter quotes the 2016 opinion in Contreras v. Dowling (2016) 5 Cal.App. 5th 394, 409, as modified on denial of reh’g (Nov. 18, 2016), where the Court of Appeal made crystal clear that: “An attorney’s communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike,” meaning that “allegedly tortious activity centered in defendants’ role as counsel was protected litigation activity.” “A cause of action ‘arising from’ defendant’s litigation activity may appropriately be the subject of a section 425.16 [special] motion to strike. ‘Any act’ includes communicative conduct such as the filing, funding, and prosecution of a civil action. This includes qualifying acts committed by attorneys in representing clients in litigation.” Thayer v. Kabateck Brown Kellner LLP (2012) 207 Cal.App. 4th 141, 154. “In fact, courts have adopted ‘a fairly expansive view of what constitutes litigation-related activities within the scope of section 425.16.’ …Cases construing the anti-SLAPP statute hold that ‘a statement is ‘in connection with’ litigation under section 425.16, subdivision (e)(2), if it relates to the substantive issues in the litigation and is directed to persons having some interest in the litigation.’ Consequently, because settlement negotiations are regarded as an exercise of the right to petition, communications during such negotiations are regarded as having been made in connection with the underlying lawsuit for purposes of section 425.16, subdivision (e)(2).” Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal. App. 5th 95, 113–14. Courts have even explained that: “The protection of the anti-SLAPP statute applies ‘even against allegations of fraudulent promises made during the settlement process.’” Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal. App. 5th 95, 113–14. These authorities provide convincing arguments that most of what attorneys do in the course of representing a client should be deemed protected activity, thereby meeting the first prong.Second Prong: Anti-SLAPP Statutes Require a Probability of Prevailing
On the second prong, the plaintiff bears the burden of “establish[ing] that there is a probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. § 425.16. Lacking the “probability” of prevailing on the claim establishes the second prong, which allows a defendant to hold a plaintiff liable for attorney’s fees as the prevailing party on the Anti-SLAPP statute.Mixed Claims Under Baral v. Schnitt
Many complaints and cross-complaints combine protected activity, such as filing a lawsuit, with unprotected conduct in the same cause of action. Before August 2016, California courts were split on how to apply the anti-SLAPP statute to a “mixed” cause of action, one that “combines allegations of activity protected by the statute with allegations of unprotected activity.” Baral v. Schnitt (2016) 1 Cal. 5th 376. Some courts followed the Mann rule, which allowed an anti-SLAPP motion only when the plaintiff’s entire cause of action would be dismissed. Mann v. Quality Old Time Serv., Inc. (2004) 120 Cal. App. 4th 90, 103, disapproved by Baral v. Schnitt (2016) 1 Cal. 5th 376.
In Baral, the California Supreme Court rejected that approach: “The Court of Appeal below held that an anti-SLAPP motion must be brought against a mixed cause of action in its entirety. It affirmed the denial of defendant’s motion because plaintiff established a probability of succeeding on claims based on allegations of activity not protected by section 425.16. This application of the anti-SLAPP statute unduly limits the relief contemplated by the Legislature. Accordingly, we reverse.” Baral v. Schnitt (2016) 1 Cal. 5th 376, 382.
As a result, unprotected activity cannot merely provide the context in which protected activity is analyzed. The protected activity is analyzed on its own, and the court strikes only the protected allegations while the rest of the cause of action goes forward.
Recovering Attorney’s Fees Incurred in Filing an Anti-SLAPP Motion
Filing an anti-SLAPP motion in response to a SLAPP complaint can be used not only to defeat the complaint, but also to hold the plaintiff liable for paying the entirety of the defendant’s attorney’s fees if the defendant prevails. In fact, the defendant’s attorney may even be entitled to a fee enhancement from the plaintiffs. Ketchum v. Moses (2001) 24 Cal. 4th 1122.Privileged Publication
Furthermore, litigation-related activities fall under the scope of a privileged publication, which is a protected publication made as part of an official duty. California Civil Code § 47 defines a privileged publication as one that is made:(a) In the proper discharge of an official duty. (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure, except as follows: (1) An allegation or averment contained in any pleading or affidavit filed in an action for marital dissolution or legal separation made of or concerning a person by or against whom no affirmative relief is prayed in the action shall not be a privileged publication or broadcast as to the person making the allegation or averment within the meaning of this section unless the pleading is verified or affidavit sworn to, and is made without malice, by one having reasonable and probable cause for believing the truth of the allegation or averment and unless the allegation or averment is material and relevant to the issues in the action. (2) This subdivision does not make privileged any communication made in furtherance of an act of intentional destruction or alteration of physical evidence undertaken for the purpose of depriving a party to litigation of the use of that evidence, whether or not the content of the communication is the subject of a subsequent publication or broadcast which is privileged pursuant to this section. As used in this paragraph, “physical evidence” means evidence specified in Section 250 of the Evidence Code or evidence that is property of any type specified in Chapter 14 (commencing with Section 2031.010) of Title 4 of Part 4 of the Code of Civil Procedure. (3) This subdivision does not make privileged any communication made in a judicial proceeding knowingly concealing the existence of an insurance policy or policies. (4) 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.That statute makes clear that a “judicial proceeding” (aka a litigation-related activity) is considered a privileged, and therefore protected, activity.
Cross-Complaints Against a Partition Plaintiff and the Plaintiff’s Attorney
The same protection applies in a partition action. When a co-owner files for partition, the defendants sometimes cross-complain against the plaintiff, and sometimes name the plaintiff’s attorney too, alleging the partition was filed to harass, cloud title, or force a sale. A cross-complaint counts as a complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16, subd. (h)). The co-owner who filed the partition can move to strike within 60 days of being served with the cross-complaint.
First prong. Filing the partition, recording the lis pendens, and the attorney’s work in the case are litigation activity. Civil Code section 47, subdivision (b)(4), quoted above, makes a recorded lis pendens privileged when it identifies a previously filed action affecting title or possession of real property. A partition lis pendens does, because Code of Civil Procedure section 872.250 requires it to be recorded right after the complaint is filed. In Alpha & Omega Development, LP v. Whillock Contracting, Inc. (2011) 200 Cal.App.4th 656, the Court of Appeal found no exception to the privilege for a lis pendens whose underlying claim lacked evidentiary merit.
Second prong. The cross-complainant must show a probability of winning, and the litigation privilege is an absolute bar to most claims based on the filing. In Rusheen v. Cohen (2006) 37 Cal.4th 1048, a litigant cross-complained against the opposing attorney for abuse of process. The California Supreme Court held the privilege barred the claim and that the trial court properly granted the anti-SLAPP motion and struck the cross-complaint. The privilege covers every tort except malicious prosecution, and a malicious prosecution claim cannot succeed unless the underlying case ends in the cross-complainant’s favor.
What is not protected. Claims about the co-ownership itself, such as ownership shares, an unpaid mortgage, taxes, rent, or improvements, arise from the property, not from the filing. The court decides those as compensatory adjustments under Code of Civil Procedure section 872.140. When a cross-complaint mixes the two, Baral (discussed above) means only the allegations that the plaintiff filed the partition or recorded the lis pendens are struck.
Consequences. The cross-defendant who wins the motion recovers attorney’s fees under the statute, as discussed above, and naming the opposing attorney as a cross-defendant adds to that exposure.
The court’s appointees are protected too. A co-owner who turns on the broker or referee the court appointed to sell the property fares no better. In Holt v. Brock, the Court of Appeal held that a court-appointed broker has quasi-judicial immunity from damages claims over the sale.
Talk to a Partition Attorney
A co-owner’s threat to sue you or your attorney should not keep you in a co-ownership you want to end. Whether the property is in Los Angeles or anywhere else in California, the law protects your right to file. No fees until you win.Talkov Law can help. With 12 full-time partition attorneys and experience in over 650 partition actions throughout California, our team helps co-owners end disputes over jointly owned real estate. Call (877) PARTITION (727-8484) today or contact us online to get started.
