In both Olszewski and Winton, the liens were not filed during litigation, but instead were filed before the litigation commenced

In both Olszewski and Winton, the liens were not filed during litigation, but instead were filed before the litigation commenced

Defendant maintains that “the liens in question are authorized and required by law” because “they had to be recorded to facilitate collection of the PACE obligations at issue” and “are enforceable by foreclosure

” (Id. at p. 16:8-10.) Therefore, Defendant argues, “the liens have a reasonable relation to a judicial proceeding, and their recording was absolutely privileged under California law.” (Id. at p. -11, citing Civ. Code, §47(b).)

In opposition, Plaintiff argues that “each of the cases cited by Ygrene involved the filing of liens or documents during active litigation or as a required pre-litigation action.” (Opp., p. 6:10-19, citing Olszewski v. Scripps Health (2003) 30 Cal.4th 798, 831 ; Albertson v. Raboff (1956) 46 Cal.2d 375, 381, superseded by statute as noted by Park 100 v. Ryan (2009) 180 Cal.App.4th 795, 812-813); Wilton v. (1993) 18 Cal.App.4th 565, 570; Silberg v. Anderson (1990) 50 Cal.3d 205, 220.)

Plaintiff argues that Olszewski holds that filing a Medicare lien during litigation is privileged under Civil Code § 47(b); Albertson holds that recordation of a lis pendens, after initiating litigation, is privileged under Civil Code § 47(b)); Wilton holds that recording a mechanic’s lien is privileged as it is a necessary first step towards enforcing the debt); and Silberg holds that statements made during a marital dissolution were privileged. (Id. at p. 5:11-19.) Plaintiff maintains that “Ygrene does not cite a single authority to suggest that recording a lien, prior to any active litigation and without contemplation of any litigation, falls within the litigation privilege of Civil Code § 47(b)(2).” (Id. at p. 5:20-22.)

A review of these cases demonstrates that in order for the litigation privilege to apply to a lien, the lien must be asserted in connection to the litigation.

Mountain Wood Homeowners Ass’n, Inc

For example, in Olszewski, the defendant first asserted a lien against the plaintiff pursuant to state statutes that permit health care providers to impose liens on certain Medicaid beneficiaries’ tort settlements. (Olszewski, supra, 30 Cal.4th at p. 806.) “In response, plaintiff filed [a] class action, alleging that defendants had no legal right to assert and collect on such liens in light of federal Medicaid law governing provider reimbursement and third party liability.” (Ibid.) The California Supreme Court in Olszewski held that because “Plaintiff does not dispute that defendant filed the liens to achieve the objects of the litigation or that the liens are connected to litigation filed by plaintiff and other class members[, t]he litigation privilege shields defendant’s assertion of liens . . . from plaintiff’s claims.” (Id. at p. 831.) Olszewski explicitly “hold[s] that the assertion of liens as authorized by validly enacted California statutes is shielded by the litigation privilege.” (Ibid.)

In Winton, a respondent filed a total of $12,600 in fraudulent assessment liens against the appellant’s condominium unit. (Winton, supra, 18 Cal.App.4th at p. 568.) After the unit was purchased, the new owner “sued the insurance company, which cross-claimed against appellant,” and “as a result, appellant filed a cross-complaint against respondent because the false liens subjected him to liability and attorneys’ fees.” (Ibid.) The Winton court held that “homeowners’ assessment liens are permitted by law to achieve the object of litigation” because this type of lien “must be filed as a first step in foreclosure actions to remedy defaults, and are thus closely related to judicial proceedings.” (Id. at p. 569.) In Wilton, the court concluded that the litigation privilege attaches to the publication of a homeowners association assessment lien even if the association has not decided at the time of publication to pursue a judicial foreclosure. (Ibid.) The Wilton Court noted, “our holding does not prevent those who are subject to homeowners assessment liens from seeking declaratory relief or filing quiet title actions to contest the validity of liens that are improper.” (Id. at p. 571.)

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