Case No. 04-14-00841-CV

In Re ROWLAND J. MARTIN TEXAS COURT OF APPEALS Relator

FOR THE FOURTH DISTRICT an J ";r'", 3E ~r- CO 3^ •

TS-^-rr BEXAR COUNTY, TEXAS^ CO C3 r~i PT ::• Oo -T> 25 ^f& •3C. ':"! T3"

RELATOR'S MOTION TO REINSTATE ORIGINAL PROCEEDING ,. i - *a XT FOR CONSOLIDATION WITH INTERLOCUTORY PROCEEDING . »#

'**'.* ' o IN CASE NO. 04-14-00483^CV 'i hr^ CO

TO THE HONORABLE FOURTH COURT OF APPEALS:

Rowland J. Martin, Relator in the above styled case, files this, his "Relator'sMotion To Reinstate Original Proceeding For Consolidation With Interlocutory Proceedings In Case No. 04-14-00483-CV," pursuant to Section 27.008 of the Texas Citizen's Participation Act, to move the Court to re-instate his original proceeding in aid of the Court's jurisdiction in Martin v. Bravenec et al, Case No. 04-14-00483-CV, and to ask the Court to vacate and expunge from the record the gag order findings entered on July 17, 2014,, in support of which this is shown:

STATEMENT OF THE CASE

Relator asserts that the trial court misapplied the law of collateral estoppel by crediting Bravenec's arguments about res judicata and conversely declining to credit Relator's collateral estoppel defense to Bravenec's tort liability claim. Relator's original petition arose from a dispute inBravenec v. Martin, Case No. 2014-CI-07644 about a lis pendens filing noticing purchase money lien interests attached to real property known as 1216 West Ave., in San Antonio, Texas. In 2005. Edward Bravenec acquired a lien interest in the property from Moroco Ventures, LLC during an attorney client relationship between Relator and the Law Office of McKnight and Bravenec. In 2006, he executed a foreclosure against his grantor, Moroco Ventures, LLC. On March 5,2014, the federal court declined to adjudicate the purchase money lien. On July 9, 2014 the trial court heard and denied Relator's motion to dismiss under the Texas Citizen's Participation Act, and granted Bravenec's request for a temporary injunction.

There is no question that the federal district court that granted summary judgment for Bravenec on the 2006 foreclosure sale also declined jurisdiction to expunge a 2014 lis pendens filing noticing purchase money claims. See Defendants' Exhibit 2. On cross-examination, Bravenec argued collateral estoppel does not apply to him:

Q. ... Were you not aware that you would be collaterally estoppel from raising those issues [about res judicata bars] is a state court forum?

A. I don't think that collateral estoppel would apply to me, so no, I don't agree with that.

Q. How do you explain [that]?

A. Well, collateral estoppel would be against the losing party. And so we are the prevailing party. So my interpretation of collateral estoppel... [is] that you were collaterally estopped from asserting what is essentially a matter that had already been decided in Federal Court [and] in Probate Court. So I think that was our argument.

Q. Very well. But [Judge Hudspeth's] order denied you relief, the relief you requested, did it not?

A. It did.

Q. Okay. So you were the losing party on this motion; is that correct?

A. On that one motion, [I] certainly was.

Court Reporters' Transcriptfor July 9, 2014, pp. 39 (lines 17-25) to 40 (lines 1-11). When asked whether he could identify the place in his judgment that refers "to a lien interest where [Relator] served in a capacity as a lien holder," Bravenec stated, "I cannot show you." Id. atp. 46, lines 13-16. Thus, it appears that Bravenec "certainly was" bound by the collateral estoppel defense arising from the federal district court's decisionto decline jurisdictionover purchase money issues. Court Reporter Record For July 19, 2014, pp. 39 - 40.

Nonetheless, on July 17, 2014, the trial court adopted Bravenec's theory in ordering temporary injunctive to suppress Relator's lis pendens notices, and various communications with anonymous contracting third parties, (hereafter "gag order"). Familiarity with the original petition and with Relator's "Advisory On Fraud On The Court" filed on February 19, 2015 is assumed. As set forth below, Relator invokes the Court's TCPA writ jurisdiction for affirmative relief by way of mandamus and prohibition that is beyond the scope of what is available in the interlocutory appeal in Case No. 04-14-00493-CV. In re Lipsky, 2013 Tex. App. LEXIS 4975 (Tex. App.—Fort Worth ,2013) (TCPA-related petition for writ of mandamus).

ARGUMENT AND AUTHORITIES

A. The De Novo Standards For Appellate Review Of Res Judicata And Collateral Estoppel Issues Use Objective Criteria To Detect Abuses Of Discretion.

Relying on the standard of review for mandamus set forth in Relator's original petition, the Court is requested to hold that the trial court abused its discretion in its treatment of collateral estoppel doctrine. C.f, Bonniwellv. BeechAircraft Corporation, 663 S.W.2d 816 (Tex.1984). Under traditional rules of res judicata, a party may be barred from relitigating claims from prior litigation, or barred from relitigating issues that were previously adjudicated in an earlier proceeding under the doctrine of collateral estoppel.^[2]

A claim of resjudicataunder Texas lawconsists of three elements:6 (1) a final judgment on the merits by a courtof competent jurisdiction; (2) identity of parties or those in privity with them; and(3) a second suit based on claims actually litigated in the first suitor claims which should have been litigated in the first suit.

For collateral estoppel to apply, three elements mustbe met: (1) the parties were cast as adversaries inthe prior proceeding; (2) the issues sought tobe litigated inthe current proceeding were "fully and fairly litigated" in the prior proceeding; and (3) those issues were "essential"to the outcome of theprior proceeding. Kenedy Mem'l Found, v. Dewhurst, 90 S.W.3d 268, 288 (Tex. 2002); Sysco Food

Offensive collateral estoppel describes when a plaintiff seekingto estop a defendant from relitigating an issue which the defendant previously litigated and lost in a suit involving another party. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979). Defensive collateral estoppel occurs when a defendant seeks to prevent a plaintiff from relitigating an issue the plaintiff has previously litigated unsuccessfully in another action against the same or a different party. UnitedStates v. Mendoza, 464 U.S. 154, 159 n.4 (1984). Collateral estoppel is further differentiated according to mutuality versus non-mutuality, i.e. whether parties with or without privity assert the estoppel bar. See United States v. Mollier, 853 F.2d 1169,1175 n.7 (5th Cir. 1988).

Lastly, when the issue is a question of law rather than of fact, the prior determination is not conclusive either if injustice would result or if the public interest requires that re-litigation not be foreclosed. City ofSacramento v. State ofCalifornia, 50 Cal.3d 51, 64 (1990); Greenfield v. Mather, 32 Cal.2d 23, 35 (1948). The public interest exception to res judicata and collateral estoppel are not confined to cases concerning public agencies, nor does it require that the initial determination of an issue be "erroneous." Kopp v. Fair Political Practices Com'n, 11 Cal.4th 607, 622, fn. ^[16] (1995). In either case, a party must specifically plead an affirmative defense or it is waived. TEX. R. CIV. P. 94; Kinnear v. Texas Comm'n on Human Rights, 14 S.W.3d 299, 300 (Tex. 2000).A.2d 184 (N.H. 2010).

pendens was illegal as a matter of law, and that the attorneys were not precluded from asserting the validity of the lis pendens.

Noting that "[collateral estoppel is not an inflexible doctrine," and that "[e]ven if the minimal requirements for its application are satisfied, the doctrine should not be applied if considerations of policy or fairness outweigh the doctrine's purposes as applied in a particular case," the court of appeals reversed the denial of the Anti-SLAPP order as follows:

... the courts have recognized that certain circumstances exist that so undermine the confidence in the validity of the prior proceeding that the application of collateral estoppel would be unfair to the defendant as a matter of law. [For example,] application of collateral estoppel is unfair where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result when Judge Treu was first called upon to address the propriety of the lis pendens in considering the expungement motion, he was not provided with the proper legal authority. His ruling was based upon misrepresentations by both parties as to the state of the law. Both Oviatt and Heron erroneously represented to the court that there was no legal authority in California discussing the propriety of recording a lis pendens on a dominant tenement in an easement dispute., when Judge Treu rendered his order expunging the lis pendens, the legal issues had not been fully presented and his decision was based on an incomplete and erroneous understanding as to the state of the law. ... new authority provided a "colorable" argument that the recording of the lis pendens was permissible. ... In these circumstances it is inherently unfair to conclude that the orders rendered by Judge Treu, including the expungement order, conclusively establish that the lis pendens was illegal as a matter of law and thus, it is inappropriate to bind attorneys Ryan and Brosman to those rulings ... When the question is one of law rather than a question of fact, a prior conclusion does not prevent a reexamination of the issue, either if injustice would result or if the public interest requires that relitigation not be foreclosed. Id. at p. 12-15. The facts here run strikingly parallel to those in Park. In the proceeding below, Bravnec persuaded the trial court to indulge a "non-mutual" application of collateral estoppel doctrine, essentially for the benefit of non-party transferees who had not disclosed to the court. Further, the state court case is a second action that affords Relator the chance to litigate purchase money lien interests, as opposed to mortgagor rights of redemption, as was the case in federal court, the presenting "procedural opportunities unavailable in the first action that could readily cause a different result." Larry York v. State ofTexas, 373 S.W. 3d 32 (2012); Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006).

Here too, because the temporary injunction hearing preceded the first Texas case to apply Anti-SLAPP law to a lis pendens dispute, the trial court "was not provided with the proper legal authority," and this led to a "ruling was based upon misrepresentations by both parties as to the state of the law" and "an incomplete and erroneous understanding as to the state of the law." There are even parallels between the two cases in terms of the nature of the legal disputes. In Park the question was whether an attorney litigating an easement dispute could file a lis pendens attaching the dominant estate. Here, the question left open by the order of the Bexar County Probate Court #1 was whether an Administrator and a purchase money lien holder could file a lis pendens notice citing a dual interest in a subject property as common fund for satisfaction of claims by the estate and its administrator, even though the estate, like the subservient tenement, had no formal legal interest in the property. Credit defensive collateral and deed estoppel is due. B. Tex. Civ. Prac. & Rem. Code 51.014(a) Does Not Provide An Adequate Remedy At Law Given Relator's Exceptions To Res Judicata For Public Policy And Unfairness.

In its order of February 2, 2015, the Court denied Appellees' motion to dismiss and granted their motion for an extension of time, stating that "in disposing of this appeal, this court will consider only those issues raised in appellant's brief that relate to the orders this court has expressly identified as the subject of this appeal." Id. Subsequently, the real parties filed a brief alleging for the first time on appeal an unlitigated cause of action for fraud in supportof their claim for temporary injunctiverelief. As a result, Relator's burden requires require review of issues relating to orders other than those disposed by the trial court on July 17,2015. Because the Court's order limits the adequacy of Section 51.014(a) as a remedy at law for the real parties' reliance on fraud to support temporary injunctive relief and the error is not harmless for reasons explainedbefore. Relator has thus sustained the secondelement of the case to reinstate original proceedings for mandamus and prohibition relief. Batzelv. Smith, 333 F.3d 1018,1025 (9th Cir. 2003), cert, denied 541 U.S. 1085 (2004) (Anti-SLAPP immunity).

1. Exceptions On Public Policy Grounds To The Real Parties' Reliance On Res Judicata Theories To Support Claims For Tortious Interference.

Relator requests mandamus relief from the temporary injunction order to vindicate the public policy rationale for his legitimate use of collateral estoppel for defensive purposes. The court in Newspaper Holdings, Inc. v. Crazy Hotel Assisted Living, Ltd., 416 S.W.3d 71; (Tex. App - 1st Dist. - Houston 2013) disposed of the tortious interference claim there with the following holding: "To establish a cause of action for tortious interference, a plaintiff must prove that (1) a contract subject to interference exists, (2) the defendant committed a willful and intentional act of interference with the contract, (3) the act proximately caused injury, and (4) the plaintiff sustained actual damages or loss .. .Ordinarily, merely inducing a contract obligor to do what it has a right to do is not actionable interference." Id. On this basis, the court of appeals there reversed a trial court order denying the defendant's TCPA motion to dismiss.

Relator's collateral estoppel defense warrants preclusion of the res judicata theory of the real parties' tortious interference claim for similar reasons. The real parties are not entitled to assert injuries due to interference because the lis pendens notice is not a per se attack on Bravenec's judgment and therefore merely induces the contracting parties to manage the inherent risk of doing business with Bravenec asthey have a right to do.^[3] More importantly, the entire

3 Relator's lis pendens notice is distinguishable from the one struck down In Wallace v. Kelley, 2007 U.S. Dist. LEXIS 56472 (D. Neb. Aug. ^[1], 2007), but even there the federal court noted that an unadjudicated state law claim associated with a lis pendens noticed filed under Nebraska law was equitablytolled under 28 U.S.C. 1367, even though the court there had sanctioned the pro se plaintiffs for filing notices of lis pendensafter final dismissals of their federal case against a mortgage backed securities trust defendant, and after state court proceedings to approve the sale of the subject properties had concluded. Id.

rationale for the underlying claim is disfavored on public policy grounds because Bravenec acquired his original lien interest in the subject property during a former attorney client relationship with Relator as was establish in Case No. 04-13-00370-CV,and the use of collateral estoppel for the offensive purpose of vindicating purchase money lien interests is also justified for that reason. ^[4]

Under Zuniga v. Grose, Locke, & Hebdon, 878 S.W. 2d 313, 318 (Tex. App. San Antonio 1994, writ ref d), the Court undoubtedly retains dominant supervisory jurisdiction and inherent authority to regulate the activities of the Law Office of McKnight and Bravenec. See, Archer v. Blakemore, 367 S.W.2d 402, (Tex. App. Austin -1963) (quiet title case involving client request to cancel deed used for in-kind payment); and Barranza Family Limited Partnership v. Levitas, Case No. 13-07-00470-CV (Tex.App. 13th Dist. - Corpus Christi, 2009) (right of interested party principle to an accounting). There the Court stated: "For the law to countenance ... abrupt and shameless shift[s] of positions would give prominence (and substance) to the imagethat lawyers will take any position, depending upon where the money lies, and that litigation is a mere game and not a search for truth ..." Zuniga, Id

A diligent search reveals few cases of attorney conduct that even remotely approach the issues about inequitable conduct in this case. In Amalfitano v Rosenberg, 428 F. Supp. 2d 196 (S.D.N.Y., 2006), appealed in 533 F.3d 117, 125 (2d Cir., 2008), certified to state courtin 12 NY3d 8 (N.Y. App., 2009), an attorney's acts of deceit leading in procuring an erroneous summaryjudgment in a prior case compelled the federal courts to certify a question for state court review about whetherdetrimental reliance was a mandatory element for attorney deceit

4 In Rose v. Rothrock, Case No. 08-3884 (E.D. Penn, 2009), a federal court denied a motion to impose sanctions against a Section 1981 lis pendens claimant who had assertedan unadjudicated interest in an executory contract of sale that the defendants had allegedly breached. The court reasonedthat the claimant hadestablished a prima facie case for his lawsuit under Pennsylvania law based onexecutory interest in a contract of sale and an assertion of first amendmentrights.

under New York's anti-deceit statute. But this case is worse than Amalfitano by far by Zuniga's standards. The attorney in Amalfitano acted to secure a benefit for his client. Here, Probate Court orders entered on March 19,2014, signify that Bravenec's status was that of an undischarged attorney of record up to that date, implying accountability in that same status at the time he entered into the contract of sale he purports to enforce in this case. Cf, In re Liberty Trust Co., 130 B.R. 467 (W.D. Tex. 1991) (disregarding attorney withdrawal unsupported by formal order of discharge). Despite that status, Bravenec has kept in-kind consideration far exceeding the quantum merit value of McKnight and Bravenec's unperformed services, executed a post- petition foreclosure to acquire the first lien note from an adverse party, profited from the rents on the property through a holding company, 1216 West Ave., Inc., and then secured a gag order to suppress a former client's attempts to recover purchase money lien interests through fraud on the court after a covert transfer of the subject property the preceding day. The public policy issue was unadjudicated in Federal Case SA 1l-CV-0414 and therefore presents a matter this Court is at liberty to resolve in the interest of deterring attorney transactions that increase and distort litigation.^[5]

2. Exceptions On Unfairness Grounds To The Real Parties' Reliance On Res Judicata And Fraud Theories In Support Of Temporary Injunctive Relief.

Relator seeks prohibition relief on grounds of unfairness to preclude the Bexar County District Courts from extending the judgment in Federal Case No. SA 1l-CV-0414 to sustain the real parties' unlitigated fraud rationale for temporary injunctive relief. The court of appeals in

5 The fact that trial proceedings were conducted despite an automatic stay in Case No. 2006-CI- 15329 and Case No. 2014-CI-07644 arouses other serious public policy concerns warranting opportunities to participate in governmentto maximum extent allowed by the law. Relator invoked state law from Larry York v. State in vain in the federal district, bankruptcy and appellate courts, but none of the federal courts applied the statecourtchoice of law in response. Goad v Zuehl Airport Flying Community Owners Association, Inc., CaseNo. 04-11-00293-CV (Tex. App.- SanAntonio, May23, 2012) (rejecting vexatious litigant classification of pro se litigant).

James, et al, v. Calkins, Case No. 01-13-0018-CV (Tex. App. - Houston [1st Dist.] August 21, 2014) disposed of a fraud claim pursuant to Tex. Civ. Prac. & Rem. Code Section 12.002(b) with the following holding: "Appellees claimed ... that appellants knewthat the lis pendens was fraudulent when it was filed and that [one appellant] admitted under oath that she knew that the lis pendens was fraudulent. But no evidence supports these assertions, and "[c]onclusory statements are not probative and accordingly will not suffice to establish a prima facie case ... The evidence shows thatthatthe lis pendens provided notice of the pendency of the 61st District Court lawsuit, which requested a declaratory judgment that a 2007 deed conveying [a] home to a trust creadted and controlled by [appellee] is invalid" James, Id. at p. 28. Here, the probative evidence flowing from Bravenec's testimony on July 9. 2014 both negates the res judicata and collateral estoppel theories he alleged, and affirmatively legitimates Relator's use of collateral estoppel for defensive and offensive purposes. See Part A, supra.

The lis pendens mandamus case in La Chappelle v. Superior Court ofRiverside County, Case No. E058014 (Cal. App. 4th Dist. 2013) (mandamus proceeding reversing lis pendens expunction) validates Relator's exceptions to the real parties' maintainence of a fraud claim, whether on interlocutory appeal or on remand. La Chappelle involved a similar fact situation where purchasers at a nonjudicial foreclosure sale moved to expungea lis pendens by alleging that the claimant could not establish the evidentiary merit of his claim. In its ruling, the trial court cited the following statement in Miller and Starr (3rd ed.) section 10.208 to support its ruling: "The purchasers title (at a foreclosure sale)... is not encumbered by any interest that is created and recorded after the deed of trust, but prior to the date of the foreclosure sale, even if the foreclosure sale purchaser had actual or constructive notice of the intervening lien or interest." Id atp. ^[2]. On appeal, the La Chappelle court of appeals concluded that the foreclosure judgment was inconclusive about whether or not the underlying deed was void: the lis pendens claimant "stated grounds to set aside the sale based on the invalidity of the trust deed" and "he does claim an interest in the real property so that the trial court erred in expunging the notice of lis pendens." Id. at p. 4.

Here, the purchase money lien encumbrance that Relator noticed in his lis pendens filing was created long before the second deed of trust Bravenc acquired in 2005 and its foreclosure in 2006. Further, here as in La Chapppelle, the federal court decision is inconclusive for purposes of the matters in controversy in the pending interlocutory appeal. The simple fact of the matter is that Bravenec was not the primary beneficiary in Federal Case No. SA 1l-CV-0414 - his co- defendants Charles Grehn and Reliant Financial were. Bravenec was a tag along first lien assignee defendant, and a vicarious beneficiary of the judgment for Reliant Financial, due to his role as the plaintiff of trespass to try title suit against Reliant Financial and his acquisition of first lien interest through a foreclosure settlement in that suit. Consequently, the judgment in Federal Case No. SA 1l-CV-0414 offers him no repose from the void order rule, especially not in the context of unadjudicated state law claims that were equitably tolled under 28 U.S.C. 1367.

La Chappelle teaches that the Court retains extraordinary writ powers to wipe the slate wiped clean, whereas the inadequacy of remedies at law to accomplish that purpose in the pending TCPA interlocutory appeal could possibly doom Relator's attempts to correct a manifest injustice in that forum. Cf, Security StateBank& Trust v. Bexar County, et al, Case No. 04-11- 00928-CV (Tex. App. - San Antonio 2012) (deprivation of due process calls for measures to wipe the slate clean). For example, contrary to supposed self-executing automatic stay protection, there were trial proceedings on December 8,2014 in the285th Judicial District Court and the Monitoring Court. Cf, Varian Medical Systems, Inc. v. Delfino, 35 Cal. 4th 180,192 (2005) appealed in Super. Ct. No. CV780187 (Cal. 2005) (lack of trial court jurisdiction due to appeal in Anti-SLAPP case triggering automatic stay). Although the attached Docket Sheet states that the setting was "per injunction," there is no reference in the temporary injunction order to the Monitoring Court, and the proceedings as such were accompanied by a lack of advance notice to the undersigned Relator of any specific trial court location. Thus, complete relief calls for a writ of prohibition to address the unfairness of allowing Bravenec to seek repose on a theory of res judicata. See generally, Appellant's Advisory On Fraud On The Court in Case No. 04-14-00483-CV.

C. The Only Conclusion To Reach From A Correct Application Of Issue And Claim Preclusion Principles Is That The Lien And Lis Pendens Notices Filed In The Case Docket Are Protected Speech.

The temporary injunction order on July 17, 2014 purports to suppress a certain notice of apparent liability for purchase money claims, a communication involving published speech, and a perfected lis pendens notice, a communication involving present and future speech that is intertwined without spec in docket records of the trial court. Regarding the lien notice, Relator invokes Section 8 of the Bill of Rights of the Texas constitution:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence.

Id. According to Section 8, the trial court violated the Bill of Rights, first on May 13, 2014, and again on July 17, 2014, by ordering cancellation withoutmeaningful opportunities to be heardon evidence about the true chain of title attached in "Defendant's Undisputed Statement of Facts."

The trial court's treatment of Relator's lis pendens notice also was error. The trial court had a duty to make specific findings supported by evidence that (1) an imminent and irreparable harm to the judicial process will deprive the litigants of a just resolution of their dispute, and (2) the judicial action represents the least restrictive means to prevent that harm. Markel v. World Flight, Inc., 938 S.W.2d 74 (Tex. App.-San Antonio 1996, no writ). The only conclusion the trial court could reach is it does not attack a judgment to enforce deed estoppel against third party purchase money lien covenants that run with the land described in the record chain of title.

The trial court could also only properly conclude from the injury asserted, the relief requested, and the underlying evidence, that the lis pendens here posed no harm judicial process. The injury Bravenec claimed arose from a lis pendens communication equivalent to the one in James, Id. In James, TCPA remedies were also affirmed because a lis pendens notice by definition involves a constitutionally protected communication implicating a judicial proceeding:

We agree that appellees' claims in the underlying case are "based on, relatef] to, or [are] in response to" appellants' exercise of the right to petition as defined by the TCPA. See id. §§ 27.00l(4)(A)(i), 27.005(b). As pleaded, appellees' actual and constructive fraud and barratry claims are "based on, relate[] to, or [are] in response to" [the opposing parties'] allegedly fraudulently claiming that they represent [the beneficiary of guardianship] in pleadings filed in various lawsuits. See id. § 27.005(b). Likewise, appellees' fraudulent lien claim is "based on, relates to, or is in response to" the lis pendens filed by [Appellant] with the Harris County clerk that gave notice of her claims against [Appellee] in the 61st District Court lawsuit, which seeks to cancel his transfer of [the beneficiary's] home to a trust controlled by him. All of these are "communication[s] in or pertaining to a judicial proceeding." See id. § 27.00l(4)(A)(i). Appellees argue that that these actions cannot be constitutionally protected, but the cases they cite do not apply the TCPA, or do not involve communications of the type at issue here. Accordingly, we hold that appellants met their initial burden to prove that appellees' legal action related to their exercise of the right of petition. See id. § 27.005(c). The judicial proceeding here involves published communications, and unpublished future communications. On July 9, 2014 , Bravenec relied on evidence consisting of documents from the federal case and his owntestimony, but failed to disclose deed records showing he transferred the subject property to a pedente lite purchaser the preceding day. "[A] trial court abuses its discretion ... unless it is clearly established by the facts thatone seeking such reliefis threatened with an actual irreparable injury if the injunction is not granted." Markel, Id. Here, there is only conjecture to suggest that the gag avoided an irreparable injury.

The trial court could also only properly conclude that the lis pendens notice should not have been expunged prior to the conclusion of the affected judicial proceeding. In Markel, the Court emphasized the necessity of "a narrowly tailored injunction order." Id. Here, the trial court ordered Relator on July 9, 2014 to submit to censorship "in the broadest terms," and indicated by the exchange that ensued when Relator objected at the July 17, 2014 hearing to the lack of narrow tailoring reflected in the proposed terms of the order:

THE COURT: "... my intent was to draft the order as broadly as possible. I did not intend the language [to] quote that phrase 'being given its broadest terms' to be included in the order. Why is it in there?"

MR. DEADMAN: "The only reason that's in there ... [is] the lengthy history in this case

THE COURT: " .. .1 don't know that you need that particular language in the Order. I don't want to make it so broad that it's subject to constitutional challenge ...." See, Court Reporters' Transcriptfor July 17, 2014. Relying as before uncritically on Bravenec's legally unwarranted and factually unsupported preclusion theories, the trial court then deleted five words, 'being given its broadest terms," but left intact all the original decretal clauses purporting to broadly enjoin Relator's future speech. Id. Like Markel, there is no evidence of any nexus with lis pendens speech that justified censorship "in the broadest terms" after title had already been transferred by the time of the hearing and before the final judgment. Unlike Markel, the covered individuals are all anonymous and even their existence is mostly hearsay. Thus, mandamus and prohibition relief is needed to wipe the slate clean. Security State Bank & Trust v. Bexar County, et al, Case No. 04-11-00928-CV (Tex. App. - San Antonio 2012), atp. 10.6

The problem with issuing an order to censor future speech, then selectively removing only the clauses that are salutary in nature, in order to avoid making the order look "so broad that it's subject to WHEREFORE, PREMISES CONSIDERED, Relator prays that the Court issue a writ to vacate and expunge the gag order nunc pro tunc, to prohibit the gag order findings, and for such other relief both in law and in equity as he may be justly entitled in Case No. 04-14-00483-CV. Dated: March 13,2015 Respectfully Submitted,

Rowland.

951 Lombrano- San Antonio, Tx 78207 (210)323-3849

CERTIFICATE OF SERVICE

I mailed a copy of this "Relator's Motion To Reinstate" to Glenn Deadman and Torralba Properties, LLC on March 13, 2015.

Rowland

EXHIBITS

A. Temporary Injunction Order Of The 285th District Court Dated July 17, 2014

B. Defendant's Undisputed Statement Of Facts Concerning Chain Of Title C. Charalambopoulus v. Grammer, Civil Action No. 3:14-CV-2424-D (N.D. Tex. January 29,2015).

D. Park 100 Investment Group v Ryan, Case No. B208189 (Cal. App. 2nd Dist. 2009). E. La Chappelle v. Superior Court ofRiverside County, Case No. E058014 (Cal. App. 4th Dist. 2013).

F Order of U.S. District Judge Harry Lee Hudspeth dated March 5, 2014.

G. Order of U.S. District Judge David Hittner

H. Orders of U.S. Bankruptcy Judge Lief. M. Clark

I. Orders of the Fourth District Court of Appealson Fewbruary 2,2015 and February 24, 2015 A

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LOUIS.*, MARJINEZ; Sobstitute Trustee tnxierthe Deed ofW 1727 W. HQdetnnd Ave SanAntonio, TX 78201 (210)222-8785 <*Q»*°ber3»20()a>au<»DcA^ C^^^^Te^c^taeWlS^ AeForedosnieetletonetwWdderatftemV ^^ MAEJUiEZ, Sofettnte Hastes, »*S^1!!!p%i^^ 48 DOCUMENT SCANNED AS FILED Casgafe4(5rMQa6994I^efcliliJ}Heri5deamihlBll-fri T»S©liW0VO/n»/'F€agBa1dfio3a8f 35

PagelD 701 PagelD 760 Grammer contends that Charalambopoulos' claims based on the assertion that she fabricated the allegations of assault are barred under the doctrine of collateral estoppel because, in issuing the Restraining Order, the Los Angeles County Superior Court found by a preponderance ofthe evidence that Charalambopoulos had "engaged in a past act of abuse against Grammer." D. Br. ^[15]. Grammer posits that Charalambopoulos is collaterally estopped from relitigating the issue of whether he engaged in the conduct that Grammer

PagelD 761 "To determine the preclusive effect of a state court judgment in a federal action, federal courts must apply the law ofthe state from which the judgment emerged." Blackv. N. Panola Sch. Dist., 461 F.3d 584,588 (5th Cir. 2006) (citation and internal quotation marks omitted). Under California law, collateral estoppel applies when (1) the issue sought to be precluded from relitigation is identical to one decidedin a formerproceeding; (2) the issue was actually litigated in the former proceeding; (3) the issue was necessarily decided in the formerproceeding; (4) the decision in the formerproceeding is final and based on the merits; and (5) the party against whom preclusion is sought is the same as, or in privity with, the party to the former proceeding. Lucido v. Superior Court, 795 P.2d 1223,1225 (Cal. 1990).

PagelD 762

PagelD 763

NO. 2012CR2973

STATE OF TEXAS § IN THE DISTRICT COURT § vs. § 226TH JUDICIAL DISTRICT § LEE VALDEZ § BEXAR COUNTY, TEXAS

APPEARANCE OF COUNSEL

TO THE HONORABLE JUDGE OF SAID COURT:

Now comes Gerald Kubena and hereby files this appearance as attorney of record for Lee Valdez, Defendant. Defendant, Lee Valdez, retained Gerald Kubena, and he consents to Gerald Kubena's appearance as attorney of record in this cause.

Respectfully submitted, Office of Gerald Kubena 606 N. Presa, No. 303 San Antonio, TX 78205 (210)290-7339

Gerald Kubena State Bar No. 00794122 Attorney for Lee Valdez

Consented to, On March 16, 2006, attorneys Ryan and Brosman filed a verified complaint in Case No. BC349120 to quiet title on behalf of Heron against Oviatt.^[3] In its one cause of action to quiet title, Heron sought to establish that there was no easement on its property "except for an easement for pedestrian egress from a fire escape at the rear ofthe Oviatt Building, for emergency fire, life or safety circumstances." On March 20, 2006, attorneys Ryan and Brosman recorded a notice of pending action (a lis pendens) against both properties. Two days later, on March 22, 2006, JMF Development notified Oviatt by email that it was withdrawing from the sales agreement because "1. The ongoing litigation ofthe Heron and the filing ofthe Lis [Pendens] could potentially drag out a closing date which would not work in terms of my acquisition criteria, [¶] 2. I was unaware that there was no [conditional use permit] for the rooftop Space and the [absence] ofthe rooftop income would be detrimental to the business model. Hf] [T]hese two unforeseen issues make the purchase [too] risky."

On May 5, 2006, Oviatt filed a verified cross-complaint and filed a lis pendens only with regard to the Heron property.

On May 30, 2006, Oviatt filed a motion to expunge the lis pendens that had been recorded on its property. Among other grounds, Oviatt alleged that the quiet title action did not involve title or the right to the Oviatt property (the dominant tenement).

At the hearing on the motion to expunge, both counsel informed the trial court that there was no legal authority addressing whether a lis pendens could reference the dominant tenement in an easement dispute. In a June 21, 2006 four-page ruling, the Honorable Rolf M. Treu granted the motion to expunge concluding the litigationdid not involvetitle or possession

The named defendant in the lawsuit was Oviatt Investment Group, LLC, previously known as La Cienega Investment Group, LLC, and subsequently known as Park 100 Investment II, LLC.

ofthe Oviatt property, and hence, there was no real property claim justifying a lis pendens on that property. Judge Treu determined it would suspend any award of attorney fees and costs, pending further action. On June 26, 2006, Judge Treu entered an order expunging the lis pendens that had been recorded against the Oviatt property.

) On August 4, 2006, Oviatt amended its previously filed verified cross-complaint that still sought to quiet title in the claimed prescriptive easement. The cross-complaint also alleged causes of action for intentional interference with economic advantage and slander of title based on the allegation that the filing of the lis pendens on its property was wrongful and caused Oviatt to lose the sale of its property. Oviatt further alleged that the lis pendens was used as a means to extort over $116,000 from Oviatt and force Oviatt to enter into a new easement agreement.

2. The overruling ofHeron's demurrer.

Arguing it was absolutely privileged (Civ. Code, § 47) to record the lis pendens on the Oviatt property, Heron demurred to the intentional interference with prospective economic advantage and slander of title causes of action in Oviatt's amended cross-complaint. On October 12, 2006, Judge Treu overruled the demurrer citing his June 2006 expungement order and indicating that Heron had not stated a real property claim and thus, the recordation ofthe lis pendens was improper.

In October 2006, Oviatt filed a motion for sanctions against attorneys Brosman and Ryan for filing the demurrer. Attorneys Ryan and Brosman argued that Heron had the right to file a lis pendens on a dominant tenement in an easement dispute and argued that the prior rulings on this issue were erroneous. Attorneys Ryan and Brosman asked Judge Treu to reconsider its prior ruling in light ofKendall-BriefCo. v. Superior Court (1976) 60 Cal.App.3d 462 {Kendall-Brief) and Woodridge Escondido Property Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559 {Woodridge). Judge Treudeclined to reconsider his priorruling, but denied the sanction request concluding that the attorneys had a colorable argument in suggesting it was permissible to file a lis pendens on the Oviatt property, i.e., the dominant tenement.

3. The denial ofHeron's motionfor summary adjudication.

On November 22, 2006, Heron filed a motion for summary adjudication of the intentional interference with prospective economic advantage and slander of title causes of action in Oviatt's first amended cross-complaint. Heron argued that an easement is a property interest that affects two separate parcels of real property, such that a lis pendens may be recorded on both parcels, the dominant and servient tenements. Among other authority, Heron cited Kendall-Brief supra, 60 Cal.App.3d 462 and Woodridge, supra, 130 Cal.App.4th 559. Thus, Heron suggested the lis pendens was privileged and not actionable. Heron noted that at the hearing on the expungement motion, both counsel made a misstatement ofthe law as both were unaware of Kendall-Briefand Woodridge. In opposing the motion for summary adjudication, Oviatt did not argue that the authority presented by Heron was not controlling. Rather, Oviatt contended the expungement order conclusively established that the lis pendenswas wrongfully recorded and not privileged, and the trial court couldnot make rulings inconsistent with its prior rulings. Oviatt also argued Heron could not use summary adjudication as a substitute for a reconsideration motion. The trial court denied Heron's motion for summary adjudication. In October 2007, the Oviatt property was sold for $13.5 million. On January 22, 2008, Oviatt abandoned its claim for a prescriptive easement through its request to quiet title, thereby leaving only the intentional interference with prospective economic advantage and slander of title causes of action.

C. This litigation (Case No. BC385309).

On February 11, 2008, Oviatt filed a complaint (Case No. BC385309) against attorneys Ryan and Brosman. Oviatt asserted three causes of action: (1) intentional interference with prospective economic advantage; (2) negligent interference with economic advantage; and (3) slander of title. The gravamen of the complaint was that the recording ofthe lis pendens on the Oviatt property (the dominant tenement) in Case No. BC349120 was improper. Attorneys Ryan and Brosman filed an anti-SLAPP motion pursuant to Code of Civil Procedure section 425.16. They argued Oviatt could not prevail on its complaint because it was barred by the litigation privilege (Civ. Code, § 47, subd. (b)), the lis pendens was properly recorded against the Oviatt property, and the interim rulings in the quiet title case were not binding in this lawsuit filed by Oviatt.

Oviatt opposed the anti-SLAPP motion arguing: (1) the rulings by Judge Treu in the quiet title action established that the lis pendens was improperly recorded, and these rulings were binding in the present case; and (2) Civil Code section 47, subdivision (b) expressly excluded an improperly recorded lis pendens from the litigation privilege. Oviatt further contended that it had a reasonable probability of prevailing on its case against attorneys Ryan and Brosman because the lis pendens was properly expunged in Case No. BC349120. The trial court, the Honorable Charles C. Lee, denied the anti-SLAPP motion.

Attorneys Ryan and Brosman appealed from the denial of their anti-SLAPP motion. We reverse.

III.

SUMMARY

We hold that attorneys Ryan and Brosman met their burden to establish that the challenged action of filing the lis pendens on the Oviatt property arose from protected activity. We further hold that Oviatt cannot meet its burden to demonstrate a probability of prevailing on its claim because in an easement dispute, a lis pendens may be recorded on the dominant tenement, here the Oviatt property.

IV. DISCUSSION

A. Motions to strike under Code ofCivil Procedure section 425.16. The Legislature enacted Code of Civil Procedure section 425.16 in an effort to curtail lawsuits "brought primarily to chill the valid exercise ofthe constitutional rights of freedom of speech and petition for the redress of grievances." (Code Civ. Proc, § 425.16, subd. (a).) Code of Civil Procedure section 425.16 provides in part: "A cause of action against a person arising from any act of that person in furtherance ofthe person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)

As pertinent here, Code of Civil Procedure section 425.16, subdivision (e) states that an " 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a... judicial proceeding, or any other official proceeding authorized by law; [and] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a... judicial body, or any other official proceeding authorized by law . . . ."

Pursuant to Code of Civil Procedure section 425.16, the party moving to strike has the initial burden of establishing that the challenged cause of action arises from protected activity. Then, the burden switches to the plaintiff to demonstrate a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); Navellier v. Sletten (2002) 29 Cal.4th 82, 88; Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.) We review an order granting an anti-SLAPP motion de novo and therefore, we conduct an independent review ofthe entire record. {Governor Gray Davis Com. v. American Taxpayers Alliance, supra, 102 Cal.App.4th at p. 456; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1544.) B. Filing the lis pendens was protected activity. The first step in the analysis is to determine if attorneys Ryan and Brosman made a threshold showing that the challenged act of filing the lis pendens in Case No. BC349120 is one arising from protected activity. {Navellier v. Sletten, supra, 29 Cal.4th at p. 88.)

1. A lis pendens is protected activity.

Communications in connection with matters related to a lawsuit come within the scope ofthe litigation privilege and are acts arising from this protected activity. {SylmarAir Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056.) "The filing of a notice of lis pendens falls squarely within [Code of Civil Procedure section 425.16's definition of a protected activity]. [Citations.]" {Manhattan Loft, LLCv. MercuryLiquors, Inc. (2009) 173 Cal.App.4th 1040, 1050; accord, Salma v. Capon (2008) 161 Cal.App.4th 1275, 1285 [the "filing ofthe notice of lis pendens in superior court and the naming of ... lenders as defendants in his lawsuit were writings made in a judicial proceeding. They are squarely covered by section 425.16, subdivision (e)(1)"].) 2. The lis pendens was not illegal as a matter oflaw. Oviatt suggests attorneys Ryan and Brosman failed to meet their burden to show that the act of filing the lis pendens in Case No. BC349120 arose from protected activity because the activity was illegal as a matter of law. Oviatt cites Flatley v. Mauro (2006) 39 Cal.4th 299 for this proposition. In Flatley, the defendant attorney's criminal acts of sending letters and making telephone calls to extort money were deemed not protected by Code of Civil Procedure section 425.16. {Flatley v. Mauro, supra, at pp. 305, 333.) Flatley held that where "the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiffs action." {Id.

at p. 320.) Flatley emphasized that in the examination ofthe first prong ofthe anti-SLAPP analysis, an activity was not protected as a matter of law only when the evidence conclusively established the illegality. Otherwise, it was an issue to be addressed when the plaintiff was called upon to provide a prima facie showing ofthe merits ofthe case. {Id. at pp. 319-320.) Flatley does not assist Oviatt. An illegal act is one that is forbidden by law. {Soukup v. Law Offices of HerbertHafif'(2006) 39 Cal.4th 260, 283.) Even if a lis pendens is not appropriate under the circumstances, it is not an illegal act forbidden by law. (E.g., Manhattan Loft, LLCv. Mercury Liquors, Inc., supra, 173 Cal.App.4th 1040-1050 [defendants' conduct in filing lis pendens was protected activity even if the lis pendens was invalid as it did not refer to a pending lawsuit, but referred to arbitration proceedings; thus, even if a lis pendens was not properly filed, the defendants met their burden of showing that the act of filing the lis pendens was protected activity].) Additionally, as we discuss below, the filing ofthe lis pendens here was authorized by law.

In the unpublished portion (part IV, B. ^[3].) of this opinion, we find unpersuasive Oviatt's contention that the rulings in Case No. BC349120 (the expungement order, the overruling ofthe demurrer and the denial ofthe motion for summary adjudication) conclusively establish that the filing ofthe lis pendens was illegal as a matter of law. This finding rejects Oviatt's collateral estoppel argument.

[[Begin nonpublished portion]] 3. The doctrine ofcollateral estoppel does not apply here. Oviatt contends attorneys Ryan and Brosman are foreclosed from addressing the propriety ofthe lis pendens because the expungement order, as well as the order overruling the demurrer and the denial ofthe motion for summary adjudication, conclusively established that the lis pendens was illegal as a matter of law. In support of this contention, Oviatt looks to the doctrine of collateral estoppel.

"Res judicata prohibits the relitigation of claims and issues which have already been adjudicated in an earlier proceeding. The doctrine has two components. ' "In its primary aspect the doctrine of res judicata [or 'claim preclusion'] operates as a bar to the maintenance of a second suit between the same parties on the same cause of action."... The secondary aspect is "collateral estoppel" or "issue preclusion," which does not bar a second action but "precludes a party to an action from relitigating in a second proceeding matters litigated and determined in a prior proceeding." ' [Citations.]" {Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329, 1335; see also Vandenbergv. Superior Court (1999) 21Cal.4th815, 828.)

"Collateral estoppel or issue preclusion bars the relitigation of an issue that was previously adjudicated if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding. [Citation.] 'The "identical issue" requirement addresses whether "identical factual allegations" are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same. [Citation.]' [Citation.] The 'necessarily decided' requirement means only that the resolution ofthe issue cannot have been ' "entirely unnecessary" to the judgment in the initial proceeding.' [Citation.]" {Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 96-97.)

"The purposes of collateral estoppel are to prevent inconsistent judgments that undermine the integrity of the judicial system, promote judicial economy by minimizing repetitive litigation, and protect litigants from harassment by vexatious litigation. [Citations.] Collateral estoppel is not an inflexible doctrine. Even if the minimal requirements for its application are satisfied, the doctrine should not be applied if considerations of policy or fairness outweigh the doctrine's purposes as applied in a particular case. [Citations.] 'In deciding whether the doctrine is applicable in a particular situation a court must balance the need to limit litigation against the right of a fair adversary proceeding in which a party may fully present his case. [Citation.]' [Citation.] 'Moreover, a particular danger of injustice arises when collateral estoppel is invoked by a nonparty to the prior litigation. [Citations.] Such cases require close examination to determine whether nonmutual use ofthe doctrine is fair and appropriate. [Citations.]' [Citation.]" {Bostick v. Flex Equipment Co., Inc., supra, 147 Cal.App.4th at p. 97; Roos v. Red (2005) 130 Cal.App.4th 870, 880.)

"To that end, the courts have recognized that certain circumstances exist that so undermine the confidence in the validity ofthe prior proceeding that the application of collateral estoppel would be 'unfair' to the defendant as a matter of law. [Citation.] [For example,] application of collateral estoppel is unfair where the second action 'affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result.' [Citation.]" {Roos v. Red, supra, 130 Cal.App.4th at p. 880, fn. omitted.) We recognize that collateral estoppel is designed to prevent the relitigation of issues previously determined and to put an end to a dispute rather than creating a continuing cycle of litigation. Here, Oviatt insists that the trial court's orders in the prior lawsuit decisively control the outcome in this case as in those orders Judge Treu held that the lis pendens was improper. Thus, according to Oviatt, attorneys Ryan and Brosman are foreclosed from addressing whether it is proper to record a lis pendens on the Oviatt property, the dominant tenement, as that issue has been previously decided.

However, when Judge Treu was first called upon to address the propriety of the lis pendens in considering the expungement motion, he was not provided with the proper legal authority. His ruling was based upon misrepresentations by both parties as to the state ofthe law. Both Oviatt and Heron erroneously represented to the court that there was no legal authority in California discussing the propriety of recording a lis pendens on a dominant tenement in an easement dispute. Thereafter, when Heron opposed Oviatt's motion for sanctions, Heron requested the trial court reconsider its prior ruling and brought forth the pertinent authority, including Kendall-Brief supra, 60 Cal.App.3d 462. As discussed more fully in the published portions of this opinion, Kendall-Brief'holds that a dispute as to the use of an easement over the servient tenement affects title and possession ofthe dominant tenement and justifies a lis pendens on the dominant tenement. Judge Treu denied the sanction request, but did not address the newly discovered legal authority. Thereafter, when Heron filed its demurrer and motion for summary adjudication, it again brought forth authority to show the validity ofthe lis pendens.

Thus, when Judge Treu rendered his order expunging the lis pendens, the legal issues had not been fully presented and his decision was based on an incomplete and erroneous understanding as to the state ofthe law. Thereafter, when faced with the correct and controlling authority, Judge Treu declined to reconsider his prior ruling even though he noted that this new authority provided a "colorable" argument that the recording ofthe lis pendens was permissible. Heron unsuccessfully tried two more times to have Judge Treu reexamine the issue and consider controlling authority. It appears that throughout the proceedings, Judge Treu relied on his initial analysis, yet that analysis did not include consideration of the appropriate law as both parties were unaware ofthe pertinent authority. In these circumstances it is inherently unfair to conclude that the orders rendered by Judge Treu, including the expungement order, conclusively establish that the lis pendens was illegal as a matter of law and thus, it is inappropriate to bind attorneys Ryan and Brosmanto those rulings. (Compare with, Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th 992 [in factual dispute as to if party had minimum contacts with California, property owner is foreclosed from trying to prove properservice aftertrial court issues third orderquashing service].) When the question is one of law rather than a question of fact, a prior conclusion does not prevent a reexamination ofthe issue "either if injustice would result or if the public interest requires that relitigation not be foreclosed. [Citations.]" {Consumers Lobby Against Monopolies v. Public Utilities Com. (1979) 25 Cal.3d 891, 902, distinguished on other grounds in Kowis v. Howard (1992) 3 Cal.4th 888, 896-899, & fn. ^[2].)

[[ End nonpublished portion. ]]

4. Attorneys Ryan and Brosman met their burden.

As stated above, we have found unpersuasive Oviatt's argument that the lis pendens in Case No. BC349120 was illegal as a matter of law. Also, we have concluded (in the unpublished portion of this opinion) that attorneys Ryan and Brosman are not foreclosed by the doctrine of collateral estoppel from addressing the validity ofthe lis pendens. Thus, attorneys Ryan and Brosman have met their burden of establishing that the activity of filing the lis pendens arises from protected activity. The burden now shifts to Oviatt to demonstrate a probability of prevailing on the claim.

C. Oviattcannot meet its burden to demonstrate a probability ofprevailing on its claims.

In this litigation, Oviatt asserted three causes of action against attorneys Ryan and Brosman: (1) intentional interference with prospective economic advantage; (2) negligent interference with prospective economic advantage; and (3) slander of title. All are based on the argument that the filing ofthe notice of pendency of action in Case No. BC349120 was improper. This argument is premised upon Oviatt's contention that it was improper for attorneys Ryan and Brosman to file the lis pendens on the Oviatt property, which is the dominant tenement. Oviatt's analysis fails because a lis pendens can be recorded against a dominant tenement in an easement dispute.

1. The lis pendens statutory scheme.

" 'A lis pendens is a recorded document giving constructive notice that an action has been filed affecting title or right to possession ofthe real property described in the notice.' [Citation.]" {Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 647.)

California's notice of pendency of action, or lis pendens, scheme is codified in Code of Civil Procedure section 405.1 et seq. Section 405.1 states, " 'Claimant' means a party to an action who asserts a real property claim and records a notice ofthe pendency ofthe action." The purpose of this section is to "clarify that the party recording a lis pendens must be a party asserting a Real Property Claim as defined in [Code of Civil Procedure section] 405.4." (Code com., 14A West's Ann. Code Civ. Proc. (2004 ed.) foil. § 405.1, at p. 312.) Pursuant to Code of Civil Procedure section 405.4, a " '[r]eal property claim' means the cause or causes of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use ofan easement identified in the pleading, other than an easement obtained pursuant to statute by any regulated public utility." (Italics added.) This definition is consistent with the definition found in Code of Civil Procedure section 405.2: " 'Notice of pendency of action' or 'notice' means a notice ofthe pendency of an action in which a real property claim is alleged."

Parties to an action asserting "a real property claim may record a notice of pendency of action in which that real property claim is alleged." (Code Civ. Proc, § 405.20.) Parties and nonparties "with an interest in the real property affected thereby, may apply to the court in which the action is pending to expunge the notice." (Code Civ. Proc, § 405.30.) Courts "shall order the notice expunged if the court finds that the pleading on which the notice is based does not contain a real property claim." (Code Civ. Proc, § 405.31.) Further, if a real property claim has been pled and as pled lacks evidentiary merit, the lis pendens shall be expunged. {Palmer v. Zaklama (2003) 109 Cal.App.4th 1367, 1377-1378.) As stated in Code of Civil Procedure section 405.32, "the court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance ofthe evidence the probable validity ofthe real properly claim." "In making [determination as to whether a real property claim is being asserted], the court must engage in a demurrer-like analysis. 'Rather than analyzing whether the pleading states any claim at all, as on a general demurrer, the court must undertake the more limited analysis of whether the pleading states a real property claim.' (Code com., 14A West's Ann. Code Civ. Proc, supra, foil. § 405.31, at p. 342.) Review 'involves only a review ofthe adequacy ofthe pleading and normally should not involve evidence from either side, other than possibly that which may be judicially noticed as on a demurrer.' (Code com., 14A West's Ann. Code Civ. Proc, supra, foil. § 405.30, at p. 337.) Therefore, review of an expungement order under section 405.31 is limited to whether a real property claim has been properly pled by the claimant. (Code com., 14A West's Ann. Code Civ. Proc, supra, foil. § 405.31, at p. 342.)" {Kirkeby v. Superior Court, supra, 33 CaUth at pp. 647-648.)

When a lis pendens has been expunged, the claimant only may record another notice of pendency of action with leave of court. (Code Civ. Proc, § 405.36.) An order expunging a lis pendens is not appealable, but must be challenged by petition for writ of mandate. (Code Civ. Proc, § 405.39.) 2. An easement dispute is a real property claim that affects the title and right topossession ofthe dominant and tenement properties. In Kendall-Brief supra, 60 Cal.App.3d 462, owners of lots adjacent to a parcel owned by developer Kendall-Brief Company sought to restrain the developer from using a private road (an easement) located on theirproperty. The owners filed a quiet title lawsuit and recorded a lis pendens against both parcels of property wishing to restrain the developers' use ofthe easement. The developer filed a motion to expunge the lis pendens as to its property, noting that it was the dominant tenement and the easement was located onthe adjacent lots' property.

When the expungement motion was denied, the developer requested the court of appeal issue a writ of mandate. {Id. at pp. 464-465.) The appellate court framed the issue before it as: "The primary issue for decision is whether the existence or nonexistence of an easement of right-of-way over a servient tenement affects title to or right of possession ofthe dominant tenement." {Kendall-Brief supra, 60 Cal.App.3d at p. 464.) Kendall-Brief slated that the "test to be applied is whether the main action, involving the existence of an easement of right-of-way over the servient tenement, affects the title or right of possession ofthe dominant tenement." {Id. at p. 467.) Kendall-Briefasserted that although the title to the owners' dominant tenement would not be directly affected if an easement right was shown to exist, the owners' right to possession clearly would be affected as access to the property would be impaired. The appellate court went on to conclude that an easement dispute did affect the title or right of possession ofthe dominant tenement: "Although title to the dominant tenement would not be affected if petitioner were to suffer an adverse result in the main action, the right of possession ofthe real property definitely would be affected inasmuch as access to such property would seriously be impaired. In our view, 'right of possession' encompasses more than mere ownership of a lot in a land locked subdivision; it includes the right to have access to and to occupy such property." {Id. at p. 468.)

Five years later, Woodcourt II Limitedv. McDonald Co. (1981) 119 Cal.App.3d 245 {Woodcourt) was decided. In Woodcourt, the appellate court held that a notice of a lis pendens was made in the course of a judicial proceeding, and privileged pursuant to Civil Code section 47.

Oviatt recognizes that the definition of a "real property claim" in Code of CivilProcedure section 405.4 includes the use of an easement. Oviattargues, however, that this definition should be limited to permit (1) the recording of a lis pendens on the servient tenement or (2) the recording of a lis pendens on the dominant tenement only whenthe dispute involves a landlocked piece of property, as in Kendall-Brief supra, 60 Cal.App.3d 462. Thus, Oviatt asserts the lis pendens filed on its property in Case No. BC349120 was improper. However, this argument fails to recognize that even where a parcel is not landlocked, the lack of access to an easement can have devastating effects. The dominant tenement's title is affected as the easement carries with it the right to use the servient tenement. For example, here, if Oviatt was unsuccessful in its battle with Heron, Oviatt would have lost the use ofthe easement, thereby severely restricting the use of Oviatt's property. In Oviatt's verified cross-complaint, Oviatt admitted that the use ofthe alley affected its property by stating that if it was excluded from using the alley, it would not be able to service its trash needs. Therefore, Oviatt's right to use the easement is a right of possession encompassing its right to have access to, and occupy the Heron property.^[4]

Further, Oviatt's interpretation ofthe present statutory scheme is contrary to the legislative history and those who have examined the statute. The legislative history and respected treatises consistently state that Kendall-Briefs holding was codified in the 1992 amendments to Code of Civil Procedure sections 405.4 and 405.20. This change in the law was intended to include within the definition of a "real property claim" a lis pendens recorded on either the dominant or servient

In presenting its argument below, Heron cited to Woodridge, supra, 130 Cal.App.4th 559. In Woodridge, a homeowner had a side yard easement over the adjoining property of his neighbor. The easement prohibited the dominant tenement from installing most permanent structures on the easement. {Id. at p. 563.) The homeowners' association filed a lis pendens on the homeowner's property in conjunction with its lawsuit against the homeowner for declaratory and injunctive relief after the homeowner refused to remove a deck he had built that encroached upon the easement. The trial court granted the homeowner's motion to expunge the lis pendens filed on his dominant tenement. {Id. at pp. 564-565.) Before Woodridge addressed the issues before it, the appellate court noted that in an unpublished opinion filed the prior year, the same appellate court had held that "the association was entitled to writ relief because [the association] had asserted a 'real property claim' against [the homeowner]." {Id. at p. 566.)

tenements in an easement dispute, i.e., the use of an easement upon or appurtenant to the property affected by the action.

The 1992 amendments to Code of Civil Procedure sections 405.4 and 405.20 codified proposals made by the Real Property Law Section ofthe State Bar of California after a two year study. These amendments comprehensively revised the lis pendens statutes. (Real Property Law Section of State Bar of Cal, Proposed New Lis Pendens Law With California Code Comments (Sept. 1991) [hereafter Section report]; Legis. Counsel's Dig., Assem. Bill No. 3620 (1991- 1992 Reg. Sess.) ch. 883, p. 3535; Assem. Com. on Judiciary, com. on Assem. Bill No. 3620 (as amended Apr. ^[29], 1992) (1991-1992 Reg. Sess.).) As stated in the Section's report, the new law was intended to codify the holdings in Kendall-Brief and Woodcourt. The Section report stated in part: "Prior statutory law was not clear regarding the availability ofthe lis pendens procedure in cases involving easements. An easement does not technically 'affect' title in the sense of changing it, nor does the existence of an easement oust the title holder of possession. Nevertheless, California title insurance practice treats an easement as both an insurable interest and an exception to title. This state of law and practice created confusion regarding the availability ofthe lis pendens procedure in cases involving easements. See Kendall-Brief Co. v. Superior Court[, supra,] 60 Cal.App.3d 462 and Woodcourt IILimited v. McDonald Co.[, supra,] 119 Cal.App.3d 245. [¶] This section expressly includes cases affecting the use of easements within the definition of 'Real Property Claim.' Use of this definition in [Code of Civil Procedure section] 409.210 ('Notice of pending action, required comments, recordation.') thus expressly makes the lis pendens procedure available in all cases which affect the use of an easement upon or appurtenant to the property affected by the action." (Section report, supra, at p. 7, italics added; see also, Code com. ^[1], Deering's Ann. Code Civ. Proc (2009 supp.) foil. § 405.4, p. 143.)

Further, pertinent references in the statutory history discussing the Legislature's intent in enacting the 1992 amendments to Code of Civil Procedure section 405.4 to include disputes over easements in the definition of a "real property claim" do not make the distinction urged by Oviatt. Documents in the legislative history make no distinction between those lis pendens placed on a dominant or a servient tenement. Nor do treatises make the distinction Oviatt urges.

The reports submitted to the Legislature discuss all easements. For example, a report to the assembly committee on judiciary stated that the new amendments were "intended to resolve any confusion by recognizing that lis pendens are available in cases involving easements." (Assem. Com. on Judiciary, com. on Assem. Bill No. 3620 (as amended Apr. ^[29], 1992) (1991-1992 Reg. Sess.), p. 5; accord, Sen. Com. on Judiciary, com. on Assem. Bill No. 3620 (as amended Apr. ^[29], 1992) (1991-1992 Reg. Sess.), p. 6.) Treatises on the subject agree that the pertinent statutes presently permit and codify Kendall-Briefs holding and these treatises do not state that such codification was limited to permitting a lis pendens on the dominant easement when there is a landlocked parcel of property. Witkin states: "The Kendall-Brief Co. holding was codified in 1992. [Code of Civil Procedure sections] 405.4 and 405.31, read together, provide that an expungement motion premised on the failure to plead a real property claim may be successfully resisted by showing that the action was based on a pleading that would affect the use of an easement identified in the pleading (other than an easement obtained pursuant to statute by any regulated public utility)." (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 401, p. 509.) Miller & Starr cite Code of Civil Procedure section 405.4, Kendall-Brief supra, 60 Cal.App.3d 462, and Woodcourt, supra, 119 Cal.App.3d 245, and state: "There are numerous types of actions that may include a real property claim and therefore may be appropriate for the recordation of a lis pendens [such as, ajctions regarding easements, including an action to establish an easement, to enforce the claimant's rights under an easement, or affecting the use of an easement, but excluding the right of use of an easement obtained pursuant to statute by a regulated public utility." (5 Miller & Starr, Cal. Real Estate, Recording and Priorities (3d ed. 2000) § 11:150, pp. 11-464 - 11-466, fns. omitted.) Because a lis pendens affects the use of an easement upon or appurtenant to the property affected by the action, as a matter of law, attorneys Ryan and Brosman were entitled to file, on behalf of Heron, the lis pendens on the Oviatt property as they were asserting a real property claim. Even though we cannot correct the trial court's expungement order (as it occurred in the prior litigation involving the easement) it cannot be used by Oviatt to establish that there is a probability it will prevail on its claims in this case against attorneys Ryan and Brosman for intentional interference with prospective economic advantage and slander of title.

3. Filing the lis pendens on the Oviattproperty was privileged and thus, Oviatt has not met its burden ofproof.

As stated above, Woodcourt, supra, 119 Cal.App.3d 245, which had cited Albertson v. Raboff{\956) 46 Cal.2d 375, held that a notice of a lis pendens filed in the course of a judicial proceeding was privileged pursuant to Civil Code section 47. Additionally, section 47, subdivision (b)(4) provides an absolute privilege to the filing ofthe lis pendens in this case. This statute states that "A privileged publication or broadcast is one made: [¶] (b) In any .. . (2) judicial proceeding,... except as follows: [¶] ... [%] (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 ofpossession ofreal property, as authorized or required by law." (Italics added.) This exception was added to the statutory scheme in 1992, the same year the Legislature clarified the lis pendens statutes to adopt the holding in Kendall-Brief supra, 60 Cal.App.3d 462. (Stats. 1992, ch. 615, § 1; Palmer v. Zaklama, supra, 109 Cal.App.4th at pp. 1377-1379.)5 "Therefore, if the pleading filed bythe claimant inthe underlying action does not allege a real property claim, or the alleged claim lacks evidentiary merit, the lis pendens, in addition to being subject to expungement, is not privileged (See Cal. Lis Pendens Practice [(Cont.Ed.Bar 2d ed. 2001)] § 2.8, pp. 36-37; 5 Miller & Starr, Cal. Real Estate [, supra,] § 11:45, p. 115-119; Greenwald & Asimow, Cal. Practice Guide: Real Property Transactions (The Rutter Group 2002) 111:608, p. 11-99.)" {Palmer v. Zaklama, supra, at p. 1380.) Since the filing ofthe lis pendens on the Oviatt property in Case No. BC349120 alleged a real property claim and was privileged, and because Oviatt has made no argument that the lis pendens lacked merit for other reasons, recordation ofthe lis pendens cannot be the basis for intentional interference with prospective economic advantage or slander of title causes of action, even if Heron acted with malice. {SylmarAir Conditioning v. Pueblo Contracting Services, Inc., supra, 122 Cal.App.4th at pp. 1058-1059 [where act is privileged, plaintiff cannot show a probability of prevailing]; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 843-844 [same]; Albertson v. Raboff supra, 46 Cal.2d at pp. 378-382; Woodcourt, supra, 119 Cal.App.3d at pp. 249-251; Delia Penna v. Toyota Motor Sales, U.S.A., Inc. (1995) 11 Cal.4th 376, 393 [to plead intentional interference with prospective economic advantage, defendant had to engage in some act that was wrongful by some measure other than the fact of interference itself]; Palmer v. Zaklama, supra, 109 Cal.App.4th at pp. 1378-1379; National Medical Transportation Networkv. Deloitte & Touche (1998) 62 Cal.App.4th 412, 440 [independently wrongful act is required to prove negligent interference with prospective economic advantage]; Brody v. Montalbano (1978) 87 Cal.App.3d 725, 738.)

5 The 1992 amendment toCivil Code section 47, subdivision (b)(4) was originally enacted as subdivision (b)(3). (Stats. 1992, ch. 615, § 1.) It partially abrogated Albertson v. Raboff, supra, 46 Cal.2d 375. {Palmer v. Zaklama, supra, 109Cal.App.4thatpp. 1378-1380.)

The trial court erred in denying the anti-SLAPP motion filed by attorneys Ryan and Brosman as they were privileged to file the lis pendens in the prior lawsuit.

V. DISPOSITION

The order is reversed. Costs on appeal are awarded to appellants Gregory R. Ryan and Wayne B. Brosman.

CERTIFIED FOR PARTIAL PUBLICATION

ALDRICH, J.

We concur:

CROSKEY, Acting P. J.

KITCHING, J.

E Case 5:ll-cv-00414 Document 173 Filed 03/05/2014CPage 2 of 2 notice of Lis Pendens asserts that Martin was the administrator of the Estate and that Defendant Edward Bravenec was "attorney of record." It did not, however, clarify what bearing that probate matter has on the Property at issue in the instant suit.

On February 13, 2014, Defendants filed a motion to expunge Lis Pendens and a motion for contempt. When the Plaintiff failed to respond to the motion, the. Court ordered him to explain the relationship, if any, between his administration of the Estate of Johnnie Mae King and the title to the Property. Plaintiff has filed no fewer than three responses to that order. It appears from those responses that the Plaintiff, as the administrator of the estate of Johnnie Mae King, is attempting to re-open and re-litigate a probate matter against Edward Bravenec and the Law Offices of McKnight and Bravenec. The propriety of that action and the accompanying Lis Pendens is well outside of the scope of this Court's jurisdiction. If the Defendants wish to pursue their motion, they should file it in Bexar County Probate Court Number 1.

It is therefore ORDERED that the Defendants' motion for contempt and to cancel lis pendens (Doc. No. 162) be, and it is hereby, DENIED.

SIGNED AND ENTERED THIS ay of March, 2014.

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

ROWLAND J. MARTIN, JR. § SUCCESSOR IN INTEREST TO § MOROCO VENTURES, LLC § § Plaintiff, § § v- § Civil Action No. H-10-3644 § CHARLES GREHN, RELIANT § FINANCIAL, INC., EDWARD § BRAVENEC, ESQ., THE LAW § OFFICE OF MCKNIGHT AND § BRAVENEC, and 1216 WEST § AVE., INC., § § Defendants. § ORDER

Pendingbeforethe Courtis Defendant Edward Bravenec's Motionto Transfer Venue, Motion to Dismiss for Lack ofSubject-Matter Jurisdiction, General Denial, Specific Denials, and Motion for Protective Order (Document No. 9). Having considered the motion, submissions, and applicable law, the Court determines the motion should be granted in part and denied in part.

I. BACKGROUND

Plaintiff Rowland J. Martin, Jr. ("Martin") brings this suit as successor in interest to Moroco Ventures, Inc. ("Moroco") challenging the October 3, 2006 foreclosure ofMoroco's real property located at 1216 West Avenue in San Antonio,

14-50093.724 Texas (the "Property"). Martin alleges Defendants Edward Bravenec ("Bravenec") and the Law Office of McKnight and Bravenec (collectively, "Bravenec's Firm"), second lien holders on the Property and Martin's former attorneys, improperly foreclosed on the Property. Martin further alleges Defendants Reliant Financial, Inc. ("Reliant") and Charles Grehn ("Grehn") (collectively, "Reliant"), both former first lien holders on the Property, allegedly committed acts ofprohibited trade practices, fraud, and fraudulent transfers for its collection efforts prior to the challenged October 3,2006 foreclosure. The relevant facts leading up to Martin's lawsuit are as follows. On October 31, 2003, Moroco executed adeed of trust on the Property in favor ofRoy M. Ramspeck and Annette G. Hanson (the "Grantees") to secure payment of a note in the amount of $145,000.00. On June 21, 2004, the Grantees assigned their rights and interests under the note and deed of trust to Reliant. Thereafter, Reliant's servicing agent, Aegis Mortgage Corporation ("Aegis"), began servicing the note. On July 26, 2004, Reliant assigned its rights and interests under the note and deed oftrust toBernhardt Properties I, Ltd. ("Bernhardt"), a nonparty to this suit. Despite Reliant's assignment to Bernhardt, Aegis continued servicing the note.

On May 3, 2005, Moroco executed a second deed of trust on the Property in favor of Bravenec to secure payment ofa second note in the amount of $20,000.00.

When Moroco defaulted on the second note, Bravenec commenced foreclosure proceedings. On May 2, 2006, asubstitute trustee held apublic sale, and Bravenec was the successful bidder. On this same day, Moroco filed avoluntary petition for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Western District ofTexas, San Antonio Division. On June 20,2006, the bankruptcy court ordered the May 2,2006 foreclosure sale void and declared that Moroco held title to the Property. Shortly thereafter, Aegis, as anamed secured creditor in Moroco's bankruptcy suit, filed a Motion for Relief from the Automatic Stay. On July 31, 2006, the bankruptcy court signed an "Agreed Order" stating that the automatic stay would remain in effect but that Moroco should continue making monthly payments to Aegis or the Property would be subject to foreclosure without further notice or action by the bankruptcy court. On August 16, 2006, Aegis, pursuant to the Agreed Order, filed a Notice ofTermination ofthe Automatic Stay with the bankruptcy court stating that Moroco was in default of the first lien note. Thereafter, Reliant commenced foreclosure proceedings on the Property. Reliant's substitute trustee issued a notice of public foreclosure scheduled for October 3, 2006.

On October 2, 2006, Bravenec filed suit in the 57th Judicial District Court of Bexar County, Texas to prevent Reliant from moving forward with the October 3, 2006 foreclosure sale. Bravenec then acquired Reliant's first lien interest and proceeded in place of Reliant at the October 3,2006 foreclosure sale. Bravenec again was the successful bidder at the sale. Asubstitute trustee's deed was issued to this effect and subsequently recorded.

On October 13, 2006, Martin filed athird-party petition and application for a temporary restraining order in the 57th Judicial District Court challenging the October 3, 2006 foreclosure sale and asserting claims for wrongful foreclosure and other prohibited transactions. On October 30, 2006, after hearing argument, the presiding Bexar County judge denied Martin's application for temporary restraining order and declared the October 3,2006 foreclosure sale valid.

Now in federal court, Martin claims Defendants engaged in numerous irregularities relating to Moroco's bankruptcy proceedings and the October 3,2006 foreclosure sale. Martin asserts the following mixed bag ofclaims: (1) common law fraud; (2) fraudulent breach of legal and financial fiduciary duties; (3) violations of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692E; (4) violations of his civil rights under the Civil Rights Act, 42U.S.C. § 1983; (5)violations of the Clayton Anti-Trust Act, 15 U.S.C. § 1; (6) violations oftheSherman Anti-Trust Act,

18 U.S.C. § 1962(c); (7) declaratory judgment on suit in trespass to try title; (8) injunctive relief to enjoin Defendants' unlawful acts; and (9) negligent infliction of emotional distress.

Bravenec moves in the alternative for transfer of venue under 28 U.S.C. § 1404, for dismissal under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction, or for a protective order.^[1] With respect to transfer, Bravenec contends that three ofthe five defendants—Bravenec, Bravenec's Firm, and the Property—reside in San Antonio. Bravenec contends that Martin and potential witnesses also reside in San Antonio. Thus, Bravenec argues it would be more convenient for the parties and witnesses and in the interest ofjustice for this case to be heard in the Western District of Texas, San Antonio Division. Reliant opposes transfer and Martin does not respond. For the reasons provided below, the Court

1Bravenec's grounds for lack ofsubject-matterjurisdiction and for aprotective order are notpersuasive, and his motion is denied on those points. The Court notes that Reliant also moves todismiss for lack ofsubject-matterjurisdiction in a separate motion, Document No. 18, not ruled on by the Court. There, Reliant argues that because Martin never held legal title to the Property, he lacks standing to sue as successor in interest to Moroco. While Reliant articulates the constitutional elements of Article III standing—injury-in-fact, causation, and redressability—Reliant offers no argument and no authority that Martin actually lacks Article III standing. Rather, Relaint's argument relies on Texas case law holding that a shareholder lacks standing to pursue the corporation's cause of action. See, e.g., Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990); El T. MexicanRestaurants, Inc. v. Bacon, 921 S.W.2d 247, 253 (Tex. App.—Houston [1st Dist.] 1995, writ denied). Reliant's challenge is construed in actuality as an objection to the prudential limitations on the Court's exercise of federal jurisdiction. See, e.g.,Ensley v. Cody Resources, Inc., 171 F.3d 315, 319-21 (5th Cir. 1999). Prudential limitations are distinct from the Article III standing requirements and are governed under Rule 17 ofthe Federal Rule ofCivil Procedure concerning real parties in interest. Id. Even assuming forthe sakeof argument thatMoroco is the proper real-party-in-interest plaintiff, the Court has serious doubts as to whether Moroco continues to existas an active Texas corporation given that itscharter wasforfeited by the Texas Secretary of State over three years ago. See Tex. Bus. & Org. Code §§11.001(4)(A)-(5), 11.356(a)(3).

finds transfer is warranted.

II. LAW & ANALYSTS

Amotion to transfer venue from one federal district court to another iswithin the transferor court's sound discretion. ^[28] U.S.C. §1404(a); see also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981). Transfer of venue is only appropriate ifa two-part test is satisfied. First, this Court, as the transferor court, must determine if the action might have been brought in the transferee court. See 28 U.S.C. §1404(a); In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004); In re Horseshoe Entm 't, 337 F.3d 429, 433 (5th Cir. 2003). Second, this Court, as the transferor court, must ascertain whether transfer is for the convenience ofthe parties and witnesses and in the interest of justice. Id. Under § 1404(a), the movant carries the burden of persuading a court thattransfer ofvenue is warranted. See In re Volkswagen ofAm., Inc., 545 F.3d 304, 315 (5th Cir. 2008) (citing Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966)). To prevail, the moving party must show that "the balance of convenience and justice weighs heavily in favor of the transfer." Gundle Lining Constr. Corp. v. Fireman's FundIns. Co., 844 F. Supp. 1163,1165 (S.D. Tex. 1994) (Crone, J.). Thus, the Court must determine if transferring venue would make it "substantially more convenient for the parties to litigate the case." See id.

When evaluating whether transfer is in the interest of justice and for the convenience ofparties and witnesses, "convenience" depends on private and public interest factors, none ofwhich is given dispositive weight. In re VolkswagenAG, 371 F.3d at 203. Courts consider the following private interest factors: (1) the relative ease ofaccess to sources ofproof; (2) the availability ofcompulsory process to secure the attendance ofwitnesses; (3) the cost ofattendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive. Id. at 203 (citing Piper Aircraft, 454 U.S. at 241 n.6). The public interest factors encompass: (1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity ofthe forum with the law that will govern the case; and (4) the avoidance ofunnecessary problems in conflict oflaws, or in the application offoreign law. Id. These factors are neither exhaustive or exclusive, nor is any one factor dispositive on the issue of transfer. Gapp v. Linde Gas N. Am., LLC, Civil Action No. H-10-4642, 2011 WL 1770837, at *2 (S.D. Tex. May 9, 2011) (Atlas, J.) (citing Action Indus., Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004)). A. Whether this case might have been brought in the Western District ofTexas.

The Court finds jurisdiction and venue are proper in the Western District of Texas, San Antonio Division. Martin asserts claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692E, the Civil Rights Act, 42 U.S.C. §1983, the Clayton Anti-Trust Act, 15 U.S.C. §l,2 and the Sherman Anti-Trust Act, 18 U.S.C. 1962(c),3 and therefore invokes federal question jurisdiction under 28 U.S.C. § 1331. The location ofthe Property underlying the basis ofMartin's claims, as well as three of the five named defendants, reside in San Antonio.^[4] Moreover, all of Martin's allegations concerning the events giving rise to his claims occurred in San Antonio. Thus, Martin's suit could have been brought in the Western District of Texas, San Antonio Division. See 28 U.S.C. § 1391 ("A civil action wherein jurisdiction is not founded solely on diversity ofcitizenship may, except as otherwise provided by law, be brought only in ... (2) ajudicial district in which a substantial part ofthe events or omissions giving rise to the claim occurred, or a substantial part ofproperty that is the subject ofthe action is situated...."). Having determined the first prerequisite totransferring venue issatisfied, the Court next weighs the private and public interest factors to determine whether transfer would be for the convenience oftheparties and witnesses, and in the interest ofjustice.

B. Whether transfer isfor the convenience oftheparties andwitnesses, and in the interest ofjustice.

1. Private interestfactors

The private interest factors weigh in favor oftransfer. First, Martin, Bravenec, Bravenec's Firm, and the Property are all situated in San Antonio. Second, Martin's allegations complain ofevents that occurred in San Antonio. Third, Neither Martin nor Defendants have named any witnesses who might testify, but given the location of the alleged events, its likely that any potential witnesses will reside in San Antonio. Fourth, Most, ifnot all, ofthe relevant documents, including filed deeds of trusts, state-court filings and orders, and bankruptcy court filings and orders, are in San Antonio. Finally, while Reliant contends transferring this case would impose a burden on it and Grehn, Reliant does not appear to have encountered any inconveniences while participating in Moroco's bankruptcy proceedings, conducting foreclosure proceedings on theProperty, ordefending against Brevenec'sstate-court action to prevent Reliant from moving forward with the October3, 2006 foreclosure sale, all of which occurred in San Antonio. Thus, the Court concludes that the general consideration of convenience for the parties, witnesses, and the overall efficiency ofthe case, would be betterserved bytrial inthe Western District ofTexas.

2. Public interestfactors

The public interest factors are neutral in the Court's analysis. First, none ofthe parties have presented any evidence or statistics that the Western District of Texas's court congestion is greater than this Court. Second,the Western District ofTexas has no apparent "localized interest" inresolving this case. Third, the Western District of Texas is well-equipped to apply the federal and state laws that govern this case. And finally, the Court finds this case does not require resolving problems in conflicts of law nor the application of foreign law. Accordingly, the public interest factors add no weight to the balance favoring transfer.

III. CONCLUSION

Having considered theprivate and public interest factors, theCourt determines that on balance, these factors weight in favor of transfer to the Western District of Texas, San Antonio Division. Accordingly, the Court hereby

ORDERS that Defendant Edward Bravenec's Motion to Transfer Venue, Motion to Dismiss for Lack ofSubject-Matter Jurisdiction, General Denial, Specific Denials, and Motion for Protective Order (Document No. 9) is GRANTED INPART and DENIED IN PART. The Court further

ORDERS that this caseis hereby TRANSFERRED to the UnitedStatesDistrict Court for the Western District of Texas, San Antonio Division. The Court further 14-50093.733 ORDERS that Defendant's Motion to Dismiss for Lack of Subject-Matter Jurisdiction and Motion for Protective Order are DENIED.

SIGNED at Houston, Texas, on this /g day ofMay, 2011.

14-50093.734 H