LAURA ESMERELDA CONTRERAS, Plaintiff and Respondent, v. CURTIS DOWLING et al., Defendants and Appellants.
No. A142646
Court of Appeal of California, First District, Division Five
Oct. 26, 2016
5 Cal. App. 5th 394
Wilson, Elser, Moskowitz, Edelman & Dicker, Michael C. Douglass and Patrick J. Kearns for Defendants and Appellants.
Charles M. Schaible for Plaintiff and Respondent.
OPINION
JONES, P. J.—This case is before us for a third time. In this latest chapter, Curtis Dowling, a lawyer employed by the firm of Beckman, Marquez & Dowling (collectively Dowling), appeals from an order of the superior court denying his special motion to strike the complaint filed against him by
Dowling filed a special motion to strike, contending the only actions he was alleged to have taken involved his representation of the Butterworths, actions he argued constituted protected activity under
We conclude the trial court erred in denying Dowling‘s special motion to strike. Contreras‘s cause of action against Dowling arises out of protected activity, because the only actions Dowling himself is alleged to have taken are all communicative acts by an attorney representing clients in pending or threatened litigation. Such acts are unquestionably protected by
Since we hold the trial court should have granted Dowling‘s special motion to strike, it necessarily follows that the motion was not frivolous. We must therefore reverse the trial court‘s award of sanctions against Dowling. For the same reason, we deny Contreras‘s motion for sanctions based on Dowling‘s filing of an allegedly frivolous appeal. We will remand for the entry of an order granting the special motion to strike and for an award of attorney fees to Dowling as the prevailing party.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from the complaint, declarations, and evidence submitted in connection with the special motion to strike. (See
Contreras‘s Occupancy of the Apartment and the Unlawful Detainer Actions
Gordon and Carol Butterworth own a house in San Francisco, which they leased to Jonah Roll and Katia Fuentes. During their tenancy, Roll and Fuentes built an unauthorized, separate dwelling unit in the garage of the Butterworths’ house. Fuentes then rented this unauthorized unit to Contreras, who moved into the unit in September 2006.
In May 2008, Roll and Fuentes moved out of the property. After they departed, the Butterworths asked Contreras to vacate the garage unit, which they contended was illegal. When Contreras refused to vacate, the Butterworths hired former defendant, Attorney Sami Mason, to assist in evicting Contreras. Mason subsequently brought two unsuccessful unlawful detainer actions against Contreras.
After Mason‘s two unsuccessful unlawful detainer actions, the Butterworths hired Dowling to serve as their counsel. On April 27, 2009, the Butterworths, now represented by Dowling, served Contreras with notice under
On June 3, 2009, Dowling, on behalf of the Butterworths, served Contreras with a 60-day notice of termination of tenancy under San Francisco Administrative Code section 37.9(a)(10). On August 5, 2009, Dowling filed an unlawful detainer action against Contreras in a case entitled Butterworth v. Contreras (Super. Ct. S.F. City and County, 2010, No. 630413). At some time thereafter, Contreras vacated the unit.
The Initial Complaint and Contreras I
Meanwhile, on May 19, 2009, Contreras filed the original complaint against the Butterworths; their son and property manager, Steven Stuart; their
The Butterworths responded to the FAC by filing an anti-SLAPP motion, which the trial court granted in part, striking Contreras‘s cause of action for wrongful eviction. Contreras and the Butterworths then filed cross-appeals in this court (Contreras v. Butterworth (June 30, 2011, No. A127379) [nonpub. opn.]). We issued our opinion in those appeals on June 30, 2011 (Contreras I). We reversed the trial court‘s order striking the wrongful eviction cause of action from the FAC but affirmed the remainder of the trial court‘s ruling.
In Contreras I, there was no dispute that all of Contreras‘s causes of action arose, at least in part, from protected conduct, and thus the first prong of the anti-SLAPP analysis was satisfied with respect to all three causes of action. Turning to the second prong of the analysis—whether Contreras had demonstrated a probability of prevailing on the merits of her claim for tenant harassment against the Butterworths—we observed that her claim was based on allegations of both protected and unprotected conduct, and thus her claim was “mixed.” Because Contreras presented evidence that the Butterworths had engaged in conduct unprotected by the anti-SLAPP statute, we concluded she had demonstrated a probability of prevailing on her tenant harassment claim.
The Third Amended Complaint and Contreras II
Contreras filed a third amended complaint (TAC) on June 27, 2012.2 The TAC alleged a cause of action for tenant harassment against the Butterworths, Attorney Mason, Stuart, Dowling, and the firm. Dowling was alleged to have “aided and incited . . . Stuart, who was acting as the agent of the Butterworths, to violate [San Francisco Administrative Code] sections 37.10B(a)(4), (5) and (10) by entering . . . Contreras’ Apartment in her absence, without proper notice or permission, by breaking or causing to be broken the lock on the Apartment door.” Dowling was also alleged to have attempted to deny that an unlawful entry had occurred, “despite [his] direct involvement in that unlawful entry.” Dowling‘s conduct was further alleged to have violated not only the San Francisco Administrative Code but also various state statutes.
The Fourth Amended Complaint
On February 15, 2013, Contreras filed her fourth amended complaint, which is the operative pleading in this case (the Complaint). With regard to Dowling, the Complaint alleges that “[i]n April 2009, . . . Stuart, acting as the agent of the Butterworths and aided and abetted by . . . Dowling . . . pursuant to an agreement among them, at least twice entered . . . Contreras‘s Apartment in her absence without proper notice or permission, in violation of
Like the TAC, the Complaint alleged a cause of action for tenant harassment. The cause of action describes the conduct constituting the claimed harassment—the Butterworths, aided and abetted by their attorney, Mason, and Stuart, interfered with Contreras‘s utilities, accepted but did not cash rent checks, and entered the premises on multiple occasions without proper notice and in Contreras‘s absence. Dowling was alleged to have “aided, abetted, and encouraged” Stuart‘s unlawful entries into Contreras‘s apartment “pursuant to an agreement between . . . Dowling . . . , the Butterworths, and . . . Stuart to force . . . Contreras from her [a]partment.” He also allegedly agreed to seek to conceal evidence of the claimed unlawful entries, and if that attempt proved unsuccessful, “they would seek to exculpate themselves by denying that their conduct was illegal.” To achieve this end, Dowling and the firm
Dowling‘s Anti-SLAPP Motion
On March 28, 2014, Dowling filed a motion to strike pursuant to
The trial court held a hearing on Dowling‘s motion to strike on May 20, 2014. The trial court denied Dowling‘s motion, ruling that the “complaint as drafted charges defendants not with whatever advice (not mentioned in the complaint) defendants may have given to [the] Butterworths and Stuart, but with the actual conduct of the Butterworths and Stuart in breaking into Contreras‘s unit.” In an apparent reference to our opinions in Contreras I and Contreras II, the trial court noted that we had twice determined that the unlawful entry did not arise out of protected activity. The court went on to find Contreras had provided sufficient evidence under the second prong of the anti-SLAPP analysis regarding tenant harassment and aiding and abetting.
The trial court granted Contreras‘s motion for sanctions against Dowling, finding that the motion to strike had been filed in violation of
On July 17, 2014, Dowling filed his notice of appeal. On June 24, 2015, Contreras filed a motion seeking sanctions against Dowling for filing a frivolous appeal.3
DISCUSSION
Dowling contends the trial court erred by failing to analyze whether his conduct, as opposed to that of his clients, constituted protected activity for
I. Governing Law and Standard of Review
A strategic lawsuit against public participation, or SLAPP suit, is one which “seeks to chill or punish a party‘s exercise of constitutional rights to free speech and to petition the government for redress of grievances.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055 [39 Cal.Rptr.3d 516, 128 P.3d 713].)
At the first step of the anti-SLAPP analysis, a court considers “whether the challenged claims arise from acts in furtherance of the defendants’ right of free speech or right of petition under one of the categories set
At the second step of the analysis ” ‘a plaintiff . . . must “state[] and substantiate[] a legally sufficient claim.” ’ [Citation.] Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ [Citation.] We consider ‘the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.’ [Citation.] However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant‘s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citation.]” (Oasis Realty, supra, 51 Cal.4th at p. 820.)
“An anti-SLAPP motion is an evidentiary motion.” (Finton Construction, supra, 238 Cal.App.4th at p. 213.) Consequently, “[t]he prima facie showing of merit must be made with evidence that is admissible at trial. [Citation.] Unverified allegations in the pleadings or averments made on information and belief cannot make the showing. [Citations.]” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1289 [74 Cal.Rptr.3d 873].)
We review orders granting or denying a special motion to strike under
II. The Effect of Contreras I and Contreras II
Before turning to the parties’ arguments, we must address a preliminary issue. In denying Dowling‘s special motion to strike, the trial court remarked that we had already determined Contreras‘s cause of action against Dowling was not based on protected activity. In this court, the parties make arguments regarding the effect of our prior decisions. We will therefore briefly explain their significance to the issues in this appeal. In doing so, we largely reiterate what we said in Contreras II.
In Contreras I, we considered cross-appeals from an order granting in part and denying in part the Butterworths’ special motion to strike Contreras‘s
In Contreras II, we considered Stuart‘s appeal from the trial court‘s denial of his special motion to strike. The then-operative complaint alleged “Stuart aided and abetted the Butterworths in some of the wrongful conduct that gave rise to Contreras‘s action against them.” Our opinion discussed the effect of Contreras I on Stuart‘s appeal. We explained, ”Contreras I establishes that Contreras has demonstrated a probability of prevailing on her claims against the Butterworths for malicious prosecution, tenant harassment, and wrongful eviction. [Citation.] It does not mean that the court below was relieved of the obligation to determine whether Contreras‘s claims against Stuart arise from protected activity, and if they do, of determining whether she has a reasonable probability of prevailing on them.” We went on to hold Stuart had forfeited his argument that Contreras‘s claims against him arose from protected activity, because his opening brief did not even address the first prong of the
Contreras contends the holdings in Contreras I and II are applicable here as law of the case. She therefore argues those cases establish that Dowling‘s alleged “conspiracy in [the Butterworths‘] actions does not arise out of protected activity.” She acknowledges our holdings do not bind him, however, since he was not a party to those appeals. Our prior cases are of limited relevance for a number of reasons. First, they hold only that some of the Butterworths’ actions do not arise out of protected activity. They did not rule on any matter related to Dowling‘s conduct. Contreras must still carry the burden of proving her case against him, and we must still examine her specific allegations and factual showing with respect to Dowling. (Bergman v. Drum (2005) 129 Cal.App.4th 11, 20 [28 Cal.Rptr.3d 112].) Second, Contreras II‘s brief discussion of Stuart‘s alleged aiding and abetting “embodied dictum rather than a principle necessary to our decision.” (City of San Diego v. Board of Trustees of California State University (2015) 61 Cal.4th 319, 352 [190 Cal.Rptr.3d 319, 352 P.3d 883].) It is therefore binding on no one. (E.g., Simmons v. Superior Court (1959) 52 Cal.2d 373, 378 [341 P.2d 13] [“Incidental statements or conclusions not necessary to the decision are not to be regarded as authority.“].) Finally, a legal determination is law of the case and ” ‘controls the outcome only if the evidence on retrial or rehearing of an issue is substantially the same as that upon which the appellate ruling was based. [Citations.]’ ” (Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1377 [183 Cal.Rptr.3d 219].) Since Contreras‘s case against Dowling arises from different facts, the holdings of Contreras I and II do not dictate the result here.
III. Contreras‘s Cause of Action Against Dowling Arises from Protected Activity.
The parties disagree sharply on whether Contreras‘s cause of action against Dowling arises out of activity protected by
“[F]or anti-SLAPP purposes [the] gravamen [of plaintiff‘s cause of action] is defined by the acts on which liability is based . . . .” (Wallace v. McCubbin, supra, 196 Cal.App.4th at p. 1190.) To determine the gravamen of Contreras‘s cause of action, we “must examine the allegedly wrongful conduct itself, without particular heed to the form of action within which it
“In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ (
A. Dowling‘s Activities
To summarize, the Complaint alleges Dowling (1) aided and abetted Stuart‘s allegedly unlawful entries into her apartment pursuant to an agreement among Stuart, the Butterworths, and Dowling; (2) agreed with Stuart and the Butterworths to conceal evidence of the illegal entries from Contreras and to seek to exculpate defendants by denying their conduct was illegal; and (3) falsely contended in his letter to Schaible that Stuart‘s first entry was not illegal and falsely denied the second entry had taken place. The factual support Contreras offered in support of these claims consisted of Dowling‘s May 11, 2009 letter to her counsel, Schaible, and the excerpt of Stuart‘s deposition in which he stated that on Dowling‘s advice, he had hired a locksmith to open the door to Contreras‘s apartment.
B. There Is No Dispute That Dowling‘s Conduct as an Attorney Is Protected.
Although she cites Dowling‘s letter to Schaible and his advice to Stuart as factual support, “Contreras does not contend that such communications are independently actionable.” Nor could she. “Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the
C. Contreras‘s Cause of Action Against Dowling Arises from His Representation of His Clients.
Contreras does not contest the protected character of Dowling‘s activities but argues she is not seeking to hold Dowling liable for any actions he took as attorney for the Butterworths. Instead, she claims she seeks to hold Dowling liable as a coconspirator in his clients’ allegedly illegal entries into her apartment.6 As Contreras puts it, “the Dowling Defendants are liable not for what they did to come within the ambit of the conspiracy, but for the underlying misconduct of the Butterworths.”
Contreras misunderstands the applicable law. Conspiring in or aiding and abetting tenant harassment is the cause of action Contreras asserts, not the specific acts of alleged wrongdoing giving rise to the Complaint‘s third cause of action. Bergstein illustrates this point. In that case, the plaintiffs sued
On appeal, the plaintiffs claimed the attorney defendants were not being sued for their actions as litigation counsel or for any written or oral statement made in a judicial proceeding. (Bergstein, supra, 236 Cal.App.4th at p. 811.) Instead, the plaintiffs argued the attorney defendants were being sued for, among other things, the unprotected conduct of aiding and abetting the breach of Tregub‘s fiduciary duties to the plaintiffs. (Ibid.) The appellate court rejected this argument, explaining that aiding and abetting Tregub‘s breach of fiduciary duties was simply the cause of action the plaintiffs asserted, not the “specific acts of alleged wrongdoing” that give rise to those causes of action.” (Ibid.) It noted, “The factual basis for defendants’ allegedly tortious activity is centered in defendants’ role as counsel.” (Ibid.)
In reaching this conclusion, the Bergstein court focused on the actions of the attorney defendants themselves, not on the conduct they were alleged to have aided and abetted. (Bergstein, supra, 236 Cal.App.4th at pp. 811–813.) Similarly, in Cabral v. Martins, supra, 177 Cal.App.4th 471, the court examined the actions taken by the attorney defendants to determine whether those actions were protected activity for purposes of the anti-SLAPP statute. (Id. at p. 479.) It did so despite the plaintiff‘s claim that the attorney defendants were liable for having knowingly assisted their clients in evading child support obligations.7 (Cabral, supra, at pp. 475, 483.)
The analysis of these cases applies here. As stated above, conspiring in or aiding and abetting tenant harassment is merely the cause of action Contreras asserts. (Bergstein, supra, 236 Cal.App.4th at p. 811.) In deciding whether her cause of action arises from protected activity, however, our focus is not on such labels but rather on Dowling‘s actual activities. (See Cabral v. Martins, supra, 177 Cal.App.4th at p. 479 [examining the “activities by the
Moreover, the evolution of Contreras‘s pleadings in this case dispels any doubt about whether her cause of action against Dowling arises from protected activity. Although Contreras‘s brief does not discuss the allegations of the FAC, that pleading claimed: “In April 2009, Mr. Stuart, acting as the agent of the Butterworths, who were advised by Mr. Dowling and Beckman, Marquez & Dowling LLP, at least twice entered Ms. Contreras‘s Apartment in her absence without proper notice or permission.” (Italics added.) This allegation plainly indicated Dowling and his firm were being sued for the advice rendered to their clients. Indeed, Dowling filed a special motion to strike the FAC, and he referred specifically to the quoted language to demonstrate that Contreras‘s cause of action against him arose out of protected activity. This motion was ultimately ruled moot because the trial court had granted the Butterworths’ motion to strike the FAC.
In June 2012, when Contreras filed the TAC, she changed the relevant language to remove the verb “advised,” alleging instead: “In April 2009, Mr. Stuart, acting as the agent of the Butterworths and aided and incited by Mr. Dowling and Beckman, Marquez & Dowling LLP, at least twice entered Ms. Contreras‘s Apartment in her absence without proper notice or permission.” (Italics added.) Still later, in the Complaint, this key language was altered yet again to allege that “[i]n April 2009, Mr. Stuart, acting as the agent of the Butterworths and aided and abetted by Mr. Dowling and Beckman, Marquez & Dowling LLP pursuant to an agreement among them, at least twice entered Ms. Contreras‘s Apartment in her absence without proper notice or permission.” (Italics added.)
“A plaintiff . . . may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint . . . in response to the motion.” (OKC3HR v. Colton (2013) 221 Cal.App.4th 468, 477–478 [164 Cal.Rptr.3d 450]; see Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 1005 [85 Cal.Rptr.3d 880] [plaintiff could not escape anti-SLAPP procedures by amending complaint to allege conspiracy].) Whether Contreras should have been permitted to amend her pleadings after Dowling filed his first motion to strike is not before us. (Cf. Salma v. Capon, supra, 161 Cal.App.4th 1275, 1294; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [112 Cal.Rptr.2d 397].) Nevertheless, we must consider her earlier pleadings in determining whether her claim against Dowling arises out of protected activity. (
Further evidence comes from Contreras‘s own contentions. In the court below and in this court, she has claimed Stuart entered her apartment “on [Dowling‘s] instruction.” Her brief further asserts Stuart “telephoned . . . Dowling from the threshold to inquire whether he should break down the door, or call a locksmith.” While this does not accurately describe the evidence in the record,8 it shows that Contreras‘s cause of action against Dowling is indeed based on his “instruction” or advice to his clients. The effort to hold Dowling liable for that alleged advice belies Contreras‘s claim that her cause of action does not arise from Dowling‘s role as counsel for the Butterworths and Stuart.
Put another way, Contreras‘s cause of action against Dowling would have no basis in the absence of Dowling‘s protected activities. (See Navellier, supra, 29 Cal.4th at p. 90 [plaintiffs’ claims against defendant would have no basis “but for” federal lawsuit between parties and defendant‘s actions in connection with federal litigation]; Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 269 [131 Cal.Rptr.3d 63] [plaintiff‘s claims of gender discrimination would have no basis in the absence of defendants’ protected activities].) This case is thus analogous to Finton Construction, supra, 238 Cal.App.4th 200 in which the plaintiff sued a law firm and individual attorneys claiming they had improperly retained a computer hard drive belonging to the plaintiff. (Id. at pp. 204, 207.) The Fourth District held that the acts alleged in the complaint arose out of the attorneys’ representation of
D. Contreras‘s Allegations of Conspiracy and Illegality Do Not Remove Dowling‘s Actions from the Protection of Section 425.16.
Contreras cannot escape this conclusion simply by alleging conspiracy or aiding and abetting. It is settled that “a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a ‘garden variety’ tort or contract claim when in fact the claim is predicated on protected speech or conduct.” (Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes, Inc. (2015) 235 Cal.App.4th 361, 368 [185 Cal.Rptr.3d 8]; see Baral v. Schnitt, supra, 1 Cal.5th at p. 392 [“the application of section 425.16 cannot reasonably turn on how the challenged pleading is organized“].) Conspiracy and aiding and abetting, the labels Contreras attaches to her claim, are no more than legal conclusions. (State of California ex rel. Metz v. CCC Information Services, Inc. (2007) 149 Cal.App.4th 402, 419 [57 Cal.Rptr.3d 156] [allegations that named and unnamed defendants “conspired to conceal their improper loss valuations” amounted to “bare legal conclusions“].) Such terms have “no talismanic significance.” (Berg & Berg, supra, 131 Cal.App.4th at p. 824.) Here, Dowling himself is not alleged to have done anything “outside the scope of normal, routine legal services.” (Cabral v. Martins, supra, 177 Cal.App.4th at p. 481.) Contreras does not claim he personally took part in the alleged wrongful entries, and the Complaint alleges no facts showing how Dowling might have assisted his clients’ wrongful conduct.9 Conclusory allegations of conspiracy or aiding and abetting do not deprive Dowling‘s actions of their protected status. (See Flores v. Emerich & Fike (E.D.Cal. 2006) 416 F.Supp.2d 885, 909 [“conclusory allegations” of conspiracy by
Equally unpersuasive is Contreras‘s reliance on the alleged illegality of the Butterworths’ conduct. She contends the entries into her apartment constituted crimes. (See
Having determined that Contreras‘s cause of action against Dowling arises out of protected activity, we turn to the second step of the anti-SLAPP analysis: We must determine whether Contreras has demonstrated a probability of prevailing on the merits. (Finton Construction, supra, 238 Cal.App.4th at p. 211.) ” ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” [Citations.]’ [Citation.]” (Ibid.) The trial court ruled Contreras had “provided sufficient evidence under the second prong re: tenant harassment, aiding and abetting.”
A. The Litigation Privilege Protects Dowling‘s Communicative Acts.
Dowling contends Contreras cannot show a probability of success because her claim is barred by the litigation privilege of
The litigation privilege applies “to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212 [266 Cal.Rptr. 638, 786 P.2d 365].) “This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.’ [Citation.]” (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 [63 Cal.Rptr.3d 398, 163 P.3d 89] (Action Apartment).) ” ‘Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]’ ” (Finton Construction, supra, 238 Cal.App.4th at p. 212.)
As far as the applicability of the litigation privilege is concerned, this case is not a close one. The privilege has been held to cover precisely the type of communications at issue here, such as a lawyer‘s discussions with clients about potential litigation, the filing of pleadings, and letters to opposing counsel. (See Rubin v. Green (1993) 4 Cal.4th 1187, 1195 [17 Cal.Rptr.2d 828, 847 P.2d 1044] [privilege protected lawyers’ meeting with potential clients to
B. Contreras‘s Claim of Conspiracy Does Not Vitiate the Litigation Privilege.
Contreras contends the litigation privilege does not apply because Dowling‘s liability is not premised on his advice to the Butterworths but on his conspiracy in, or aiding and abetting of, his clients’ illegal entries into her apartment. According to Contreras, “[t]he only role that the Dowling Defendants’ advice plays in this action is as evidence of their concurrence with the Butterworths in the illegal entry.” (See Action Apartment, supra, 41 Cal.4th at p. 1248 [” ‘We have drawn “a careful distinction between a cause of action based squarely on a privileged communication, such as an action for defamation, and one based upon an underlying course of conduct evidenced by the communication.” ’ “].) This contention fails for two reasons.
First, Contreras‘s argument “contains the same flaw infecting [her] assertion that [her] claims do not arise from protected activity: the complaint itself plainly demonstrates otherwise.” (Bergstein, supra, 236 Cal.App.4th at p. 814.) Contreras does not identify any conduct by Dowling that was not a communication made in connection with a judicial proceeding. (Id. at p. 815.) Simply claiming that Dowling‘s alleged conspiring or aiding and abetting “is ‘non-communicative conduct’ does not make it so.” (Ibid.) Contreras devotes much of her brief to discussing the conduct of the Butterworths and Stuart, but she fails to provide any record citations for Dowling‘s alleged noncommunicative conduct. (Id. at p. 814.)
Second, an anti-SLAPP motion is an evidentiary motion (Finton Construction, supra, 238 Cal.App.4th at p. 213), but Contreras fails to provide evidentiary support for her allegations of conspiracy or aiding and abetting. “Because civil conspiracy is so easy to allege, plaintiffs have a weighty burden to prove it.” (Choate v. County of Orange (2000) 86 Cal.App.4th 312, 333 [103 Cal.Rptr.2d 339] (Choate).) To prove a claim for civil conspiracy, [Contreras] was required to provide substantial evidence of three elements: (1) the formation and operation of the conspiracy, (2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from the wrongful conduct.” (Kidron v. Movie Acquisition Corp. (1995) 40 Cal.App.4th 1571, 1581 [47 Cal.Rptr.2d 752] (Kidron).) For liability to attach, knowledge of the planned tort must be combined with intent to aid in
To support her claim that Dowling concurred in the Butterworths’ illegal entries, Contreras relies heavily on inferences she would have us draw from the absence of evidence. (See Choate, supra, 86 Cal.App.4th at p. 335 [refusing to infer existence of conspiracy from absence of evidence].) For example, she views Dowling‘s letter to Schaible as “admitting, without the slightest reservation or attempt to disclaim his concurrence in it, that the first unlawful entry was the work of his clients.” It is unclear why Contreras believes Dowling was required to “disclaim his concurrence” in his clients’ actions. His letter was a response to Schaible‘s discussion of Contreras‘s claims against the Butterworths and Stuart. Schaible did not contend Dowling was involved in the entry into Contreras‘s apartment. In fact, Schaible‘s letter did not even state that Dowling‘s clients had entered Contreras‘s apartment; it said only that “someone entered . . . Contreras‘s apartment by forcing the lock on the apartment door.” (Italics added.) No inference can be drawn from Dowling‘s failure to “disclaim his concurrence.”13 (See Kidron, supra, 40 Cal.App.4th at p. 1582 [inference must flow logically from other facts established in the action].)
Finally, as she did in the court below, Contreras argues Dowling‘s concurrence in his clients’ illegal entry into her apartment may be inferred from the existence of the attorney-client relationship itself. She reasons that such a relationship “typically is premised on an agreement between an attorney and his client to attain certain mutual objectives.” In this case, the alleged mutual objective was to remove Contreras from her apartment.
We decline to infer Dowling‘s concurrence in his clients’ acts from the mere existence of their attorney-client relationship. Contreras cites no authority holding that an attorney-client relationship is evidence of a conspiracy between the attorney and client, and our own research discloses none. Moreover, we share Dowling‘s expressed concern about the implications of such a holding. He contends there will be a chilling effect on attorneys if their communicative acts can be placed outside the protection of section 425.16 by the unadorned allegation that they conspired in their clients’ torts. Contreras airily dismisses this concern, arguing “any chilling effect that conclusion may have on conspiracies between lawyers and their clients must be counted an unalloyed benefit.” We are not so sanguine. “The fears of chilled speech and hindered justice are too much a part of our case law to be disregarded as unproved.” (McClatchy Newspapers, Inc. v. Superior Court (1987) 189 Cal.App.3d 961, 971 [234 Cal.Rptr. 702] [allegation of conspiracy to permit witness to make defamatory statements in deposition does not “pierce the protective shield” of
C. Contreras‘s Authorities Are Distinguishable.
The cases upon which Contreras principally relies are readily distinguishable. In both United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617 [90 Cal.Rptr.3d 669] (U.S. Fire) and California Back Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032 [73 Cal.Rptr.3d 268] (California Back Specialists), the actions sought to hold the attorney defendants liable for the attorneys’ own conduct, not for the conduct of their clients. In U.S. Fire, an insurance company and former client of the defendant law firm alleged the firm had
Similarly, in California Back Specialists, a medical lien holder sued an attorney who had represented two personal injury plaintiffs to whom the lien holder had provided medical treatment. (California Back Specialists, supra, 160 Cal.App.4th at p. 1035.) The complaint alleged the attorney had failed to notify the lien holder of the settlement of the underlying personal injury action and had then disbursed the settlement proceeds without withholding the funds owed to the lien holder. (Ibid.) The appellate court affirmed the denial of the attorney‘s special motion to strike, holding the action did not arise out of protected activity. (Id. at pp. 1036–1037.) It explained that the anti-SLAPP statute does not apply where protected activity is only collateral or incidental to the purpose of the transaction or occurrence underlying the complaint. (Id. at p. 1037.) Thus, it concluded, “[the lien holder‘s] complaint is based on the underlying controversy between private parties about the validity and satisfaction of the liens. These issues were never under consideration in any court or official proceedings until [the lien holder] filed the current action.” (Ibid.) In other words, the lien holder‘s action arose not out of the attorney‘s representation of his personal injury clients, but rather out of the attorney‘s own conduct in failing to honor and satisfy the medical liens.
Kimmel v. Goland (1990) 51 Cal.3d 202 [271 Cal.Rptr. 191, 793 P.2d 524] (Kimmel), another case upon which Contreras relies, involved only the application of the litigation privilege and was not an anti-SLAPP case. We find it relevant here, but not for the reasons Contreras cites. In Kimmel, residents of a mobilehome park, anticipating a suit against the park management, secretly recorded conversations they had with management representatives. (Id. at pp. 206–207.) The tape recordings were then transcribed by the residents’ attorney, R. Richard Farnell. (Id. at p. 207.) After the residents filed suit against park management, the latter discovered the existence of the tape recordings and filed a cross-complaint alleging a violation of
The California Supreme Court concluded the litigation privilege was not applicable to the taping of confidential telephone conversations, because the relevant subdivision of
Far from supporting Contreras‘s position, these cases only serve to illuminate the overarching defect in her argument. The courts in all of these cases concluded attorneys could be held liable for their own noncommunicative conduct. Further, the acts of advising and counseling clients and communicating regarding litigation are protected by the litigation privilege notwithstanding allegations that the attorney has aided and abetted or conspired with clients.
V. The Sanctions Award Must Be Reversed and the Motion for Sanctions for a Frivolous Appeal Denied.
The lower court‘s award of sanctions under
Contreras has also filed a motion in this court seeking sanctions against Dowling for filing a frivolous appeal. “Our reversal of the trial court‘s ruling establishes that [Dowling‘s] appeal is meritorious and obviates any need to discuss the issue of sanctions.” (California Wholesale Material Supply, Inc. v. Norm Wilson & Sons, Inc. (2002) 96 Cal.App.4th 598, 610 [117 Cal.Rptr.2d 390]; accord, Bono v. Clark (2002) 103 Cal.App.4th 1409, 1434 [128 Cal.Rptr.2d 31] [in light of reversal, respondent‘s request for sanctions “is obviously untenable“].)
DISPOSITION
The orders denying Dowling‘s special motion to strike and granting Contreras‘s motion for sanctions are reversed. The matter is remanded to the trial court for entry of a new and different order granting Dowling‘s special motion to strike and for an award of attorney fees to Dowling as prevailing party, including attorney fees incurred in connection with this appeal. (
Dowling is entitled to costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)
Needham, J., and Bruiniers, J., concurred.
A petition for a rehearing was denied November 18, 2016, and the opinion was modified to read as printed above. Respondent‘s petition for review by the Supreme Court was denied February 1, 2017, S238639.