California Association of REALTORS® files malicious prosecution action
against attorney David Barry, Arleen Freeman and James Alexander
LOS ANGELES (Sept. 27) The California Association of REALTORS® (C.A.R.) today announced that it has filed a malicious prosecution action against Arleen Freeman, James Alexander and their attorney, David Barry. State law prohibits malicious prosecution such as when litigants re-file the same matter against the same defendants, causing the defendants to incur attorneys’ fees and costs to get it dismissed.
“This is not the first time Barry has been sued for malicious prosecution,” said June Barlow, vice president and general counsel for C.A.R. “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.”
Barry has brought over a dozen legal actions against C.A.R. and organized real estate for more than two decades, yet in these cases his clients have never obtained a judgment against boards of REALTORS® except in one case on a narrow legal issue pursuant to a settlement to avoid the costs of trial.
In 1997, Freeman and Alexander sued C.A.R. in federal court, lost on summary judgment, and a U.S. Court of Appeals upheld C.A.R.’s dismissal. Despite these clear rulings, Freeman re-filed against C.A.R. 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 C.A.R.'s favor for the second time.
“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. 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 C.A.R.,” Barlow said. “This is clearly not permitted by law. The law even has a name for cases that have already been litigated, a Latin phrase, “res judicata,” which is the very ground on which the federal court dismissed this last case.
“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,” Barlow said. “At some point, enough is enough.”
A sampling of Barry’s failed judicial history against organized real estate includes:
Bartley v. Miller & C.A.R. – Superior Court, Los Angeles, No. C302981 (1980); Order and judgment dismissing complaint against C.A.R.
Butler v. San Francisco Board of REALTORS®, et al. – Unpublished. 1st App. Dist. Court of Appeals upheld demurrer and dismissal. April 15, 1982 (1 Civ. No. 51054)
Derish v. San Mateo-Burlingame Board of REALTORS®, 186 Cal. Rptr. 390, 136 CA 3d 534 (1982) – state court. Published, U.S. Court of Appeal, 9th Circuit; Court of Appeal affirmed judgment of dismissal – federal court.
Doi v. San Francisco Board of REALTORS®, San Francisco Superior Court No. 761841; Dismissed complaint with Prejudice (1980). Dismissal upheld by California Court of Appeal (unpublished) 1983 1 Civ. No. 50519).
Dutton v. Sutter-Yuba MLS and Sutter-Yuba Board of REALTORS®,
Yuba County Superior Court No. 2669 (1976).
Dutton v. Sutter-Yuba MLS and Sutter Yuba Board of REALTORS®
U.S. District Court, Eastern District (1980).
Kershaw v. Sacramento Board of REALTORS®, et al. – Sacramento Superior Court, No. 281460 (1980). Complaint dismissed by Superior Court, June 30, 1980; 1981 Unpublished opinion by the Court of Appeals affirmed summary judgment in favor of the Sacramento Board of REALTORS®.
Supermarket of Homes v. San Fernando Valley Board of REALTORS®. CA 9 (Cal.) 786 F2d 1400. U.S. Court of Appeal, 9th Circuit (1986); Barry’s client found to have committed willful copyright infringement. Board of REALTORS® obtained a judgment.
Williams – Debtors- San Fernando Valley Board of REALTORS® v. Williams U.S. Bankruptcy court.
Reifert v. S. Cent. Wis. MLS Corp., No. 04-C-969-S, 2005 WL 2055958 (W.D.Wis. Aug. 25, 2005), appeal docketed, No. 05-3601 (7th Cir. Sept. 7, 2005). Summary judgment granted for defendant MLS.
Jacob Zinneman v. NAR March 30, 2004, TTAB (U.S. Patent and Trademark office) trademark cancellation; petition to challenge REALTOR® trademark denied.
Leading the Way...® in California real estate for 100 years, the California Association of REALTORS® (www.car.org) is one of the largest state trade organizations in the United States, with more than 180,000 members dedicated to the advancement of professionalism in real estate. C.A.R. is headquartered in Los Angeles.