Contreras v. Dowling
5 Cal. App. 5th 394
| Cal. Ct. App. | 2016Background
- Contreras rented an unauthorized garage unit; Butterworths (landlords) sought to remove her and initiated eviction actions; after two unsuccessful unlawful detainers the Butterworths retained attorney Curtis Dowling.
- Contreras sued the Butterworths and others for tenant harassment and related claims, later adding Dowling and his firm alleging he aided and abetted unlawful entries into her apartment.
- Dowling moved to strike under California’s anti-SLAPP statute (§ 425.16), arguing the acts attributed to him were communicative litigation-related activities protected by the statute; the trial court denied the motion and awarded sanctions to Contreras.
- On appeal, the court considered whether (1) Contreras’s claims against Dowling arise from protected petitioning/speech activity and (2) whether she showed a probability of prevailing given defenses such as the litigation privilege (Civ. Code § 47(b)).
- The Court of Appeal held Dowling’s alleged acts (advice to clients, letter to opposing counsel, litigation filings/communications) are litigation-related and therefore protected by the anti-SLAPP statute; the litigation privilege also barred liability, so Contreras could not show a probability of success.
- The court reversed the denial of the anti-SLAPP motion, vacated sanctions against Dowling, remanded to enter an order granting the motion, and awarded Dowling fees and costs (including appellate fees).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Contreras’s claims against Dowling arise from protected petitioning/speech activity under § 425.16 | Contreras: She sues Dowling for conspiracy/aiding-and-abetting the landlords’ illegal entries; liability is for the underlying non-communicative torts, not protected speech | Dowling: The only acts alleged (advice, letters, litigation-related steps) are communicative acts by counsel during litigation and fall squarely within § 425.16 protection | Held: Claims arise from protected activity — focus is on defendant’s acts; Dowling’s alleged conduct is centered in his role as counsel and is protected |
| Whether labels like "conspiracy" or "aiding and abetting" remove protection of anti-SLAPP or litigation privilege | Contreras: Conspiracy allegations mean Dowling participated in noncommunicative illegal acts; Flatley exception for illegal conduct applies | Dowling: Conclusory conspiracy labels cannot convert protected communicative acts into unprotected ones; Flatley applies only where protected activity is shown to be illegal as a matter of law | Held: Conclusory allegations insufficient; conspiracy/aiding-and-abetting labels do not defeat anti-SLAPP protection or the litigation privilege absent admissible evidence of noncommunicative wrongful conduct |
| Whether Contreras demonstrated a probability of prevailing on tenant harassment claim against Dowling (second prong of anti-SLAPP test) | Contreras: Offers letter from Dowling and Stuart’s deposition (advised by counsel to hire a locksmith) to show Dowling’s concurrence/participation | Dowling: Litigation privilege immunizes his communicative acts; Contreras provides no admissible evidence of noncommunicative participation or substantial assistance | Held: Contreras failed to present admissible evidence to overcome the absolute litigation privilege; she cannot show a probability of success |
| Whether trial-court sanctions (for frivolous anti-SLAPP motion) and appellate sanctions (for frivolous appeal) were proper | Contreras: Trial court found motion frivolous; sought sanctions on appeal | Dowling: Motion and appeal were meritorious; sanctions improper | Held: Because the anti-SLAPP motion should have been granted, sanctions below were erroneous and appellate sanctions denied; Dowling entitled to fees as prevailing party |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (clarifies two-step anti-SLAPP framework)
- Navellier v. Sletten, 29 Cal.4th 82 (focuses anti-SLAPP analysis on defendant’s activity that gives rise to liability)
- Bergstein v. Stroock & Stroock & Lavan LLP, 236 Cal.App.4th 793 (claims premised on attorneys’ role as counsel are protected)
- Cabral v. Martins, 177 Cal.App.4th 471 (examines attorney activities to determine anti-SLAPP applicability)
- Flatley v. Mauro, 39 Cal.4th 299 (anti-SLAPP unavailable if defendant concedes or evidence conclusively establishes the protected activity was illegal as a matter of law)
- Silberg v. Anderson, 50 Cal.3d 205 (elements and scope of the litigation privilege)
- Rubin v. Green, 4 Cal.4th 1187 (litigation privilege protects attorneys’ communications in litigation)
- Finton Construction, Inc. v. Bidna & Keys, APLC, 238 Cal.App.4th 200 (anti-SLAPP is an evidentiary motion; courts assess whether acts arose from representation)