The California Association of Realtors has filed a lawsuit against two real estate professionals and a lawyer who were involved in previous litigation that involved the state trade group.

The California association charges that the trio violated state malicious prosecution law, which prevents people from re-filing the same complaint against the same parties. But David Barry, the lawyer who is named in the complaint, said today that the earlier litigation was warranted, and he disputes the “malicious prosecution” claim.

June Barlow, vice president and general counsel for the association, said, “While lawyers are required to vigorously represent their clients, they also are required to have some legal basis for pressing a suit. In this case, the court had already ruled against his client on these issues.

“Everyone knows, and particularly lawyers know, you can’t go to court repeatedly against the same parties on the same issues after you have lost. At some point, enough is enough.”

The association’s new complaint is the latest action in a protracted legal battle that dates back to 1997.

The association in a statement today said, “Barry has brought over a dozen legal actions against (the California Association of Realtors) and organized real estate for more than two decades, yet in these cases his clients have never obtained a judgment except in one case on a narrow legal issue pursuant to a settlement to avoid the costs of trial.”

Barlow also said, “This is not the first time Barry has been sued for malicious prosecution.” She said this statement was based on a review of court records.

But Barry, a San Francisco lawyer who is known for his work in real estate antitrust litigation, denied that he has ever been sued for malicious prosecution, adding that he has won settlements and favorable rulings on behalf of his clients.

The Realtor group said that Arleen Freeman and James Alexander sued the group in federal court in 1997 and lost on a summary judgment. “A U.S. Court of Appeals upheld (the association’s) dismissal. Despite these clear rulings, Freeman re-filed against (the association) in the same federal court again and also sued the attorneys in the case. The U.S. Ninth Circuit Court of Appeal upheld all of the district court’s dismissals in (the association’s) favor for the second time,” the association stated.

“At some point, litigation is supposed to be conclusive. When a person causes damages by continually trying to litigate the same case, the law provides remedies for the damages,” Barlow said. “Most malicious prosecutions are brought when a party has wrongfully brought just a single lawsuit. In this case, he brought three lawsuits on the same matter, two of which were against (the association).”

While the association’s announcement references a long list of litigation that Barry has filed, Barlow said the malicious prosecution complaint relates to one case: Freeman v. Lasky, Haas & Cohler, which was decided by the Ninth Circuit Court of Appeals earlier this year.

In that case, real estate professionals Freeman and Alexander sued executives, lawyers and law firms of associations involved in previous antitrust litigation relating to alleged price-fixing by a San Diego-area multiple listing service run by local Realtor associations. The Freeman v. Lasky case charged that there was misconduct, perjury and witness intimidation relating to the earlier case, though the Court of Appeals did not validate those claims.

Barlow said that the malicious prosecution case seeks to recover about $300,000 in lawyer fees and other damages related to the Freeman v. Lasky case. The California Association of Realtors has never before entered into this type of litigation. “It’s a very serious matter when we decide to do this,” she said.

Barry said he believes the Realtor trade group is engaging in “SLAPP” litigation (Strategic Lawsuits Against Public Participation) – a type of lawsuit that critics say are filed by big companies in an effort to silence public criticism. He also said the Freeman vs. Lasky case  “wasn’t (filed) just out of the blue for spite. There was a reason for it.”

Barlow said that Barry “needs to realize and respect that when the U.S. Ninth Circuit Court of Appeals exonerates (the state association), he is not allowed to continue to file suits on the same issue.”

Barry noted that a U.S. District Court judge issued an order in the earlier litigation that found that sanctions should be levied against the Realtor groups based on information that was willfully withheld from the court.


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