Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the January 20, 2016 mailing of "Constructive Notice":

Can't SLAPP the Title Company!

There was some question whether an access easement was properly shown of record. Title Insurer attempted to negotiate a settlement with the Servient Owner. When negotiations failed, Insurer hired counsel to bring a quiet title action, including the filing of a lis pendens. Servient Owner responded with a complaint against the Insurer for slander of title, violations of subdivision laws and infliction of emotional distress.

Insurer brought a special motion to strike the complaint based on the California “anti-SLAPP” statute. The trial court granted the motion and was affirmed on appeal. Regan v. First American Title Insurance Company, No. D066552 (Cal. Ct. App. 4th Dist. Div. 1, January 8, 2016) (unpublished).

Servient Owner strenuously contended the Insurer’s activities were part of a larger conspiracy to illegally impose the easement, resulting in damage to their property value. Insurer successfully defended by showing the litigation papers were written or oral statements made before a judicial proceeding in furtherance of free speech or petition rights. Thus they fell within the ambit of activity the anti–SLAPP statute is designed to protect. Moreover, all the Insurer’s alleged pre-litigation statements were found to have been “made in connection with or in preparation for litigation,” and also subject to the protection of the statute.


This is an unusual application of the anti-SLAPP statute. SLAPP (Strategic Lawsuit Against Public Participation) characterization imputes to the plaintiff an intent to intimidate the defendant or force it to squander resources. A companion case, Bank of New York Mellon v. Regan, involved similar claims against the insured and was resolved in similar fashion simultaneously with First American.