Contreras v. Dowling

• Decision Date: 26 October 2016
• Docket Number: A142646
• Parties: Laura Esmerelda CONTRERAS, Plaintiff and Respondent, v. Curtis DOWLING et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

5 Cal.App.5th 394

208 Cal.Rptr.3d 707

Laura Esmerelda CONTRERAS, Plaintiff and Respondent,

v.Curtis DOWLING et al., Defendants and Appellants.

A142646

Court of Appeal, First District, Division 5, California.

Filed October 26, 2016

As Modified on Denial of Rehearing November 18, 2016

Rehearing Denied November 18, 2016

Review Denied February 1, 2017

Wilson, Elser, Moskowitz, Edelman & Dicker LLP, Michael C. Douglass, Los Angeles, and Patrick J. Kearns, San Diego, for Defendants and Appellants.

Charles M. Schaible, San Francisco, for Plaintiff and Respondent.

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 respondent Laura Esmerelda Contreras. ( Code Civ. Proc., § 425.16.)¹ In the litigation below, Contreras sued her landlords Gordon and Carol Butterworth, their son, Steven Stuart, and the Butterworths' former attorneys for tenant harassment and other causes of action arising out of allegedly illegal entries into Contreras's apartment. After Dowling assumed representation of the Butterworths, Contreras amended her pleadings to name him as a defendant. She alleged Dowling had aided and abetted his clients' wrongful entries.

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 section 425.16. The trial court denied Dowling's motion, ruling that Contreras's action did not arise out of protected activity because she sought to hold him liable not for his activities as an attorney, but only for the underlying wrongful conduct of the Butterworths. In addition, relying in part on our opinions in the two prior appeals in this case, the trial court found Contreras had established a probability of prevailing on the merits of her complaint. Furthermore, because it found Dowling's motion frivolous, it granted Contreras's motion for sanctions.

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 section 425.16. Bare allegations of aiding and abetting or conspiracy do not suffice to remove these acts from the protection of the statute. Moreover, Contreras cannot demonstrate a probability of prevailing on the merits of her cause of action, because Dowling's communicative acts are within the scope of the litigation privilege codified in Civil Code section 47, subdivision (b).

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 § 425.16, subd. (b)(2) ; Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1175, 128 Cal.Rptr.3d 205.) In accordance with our standard of review of orders denying such motions, our statement of facts accepts as true the evidence favorable to Contreras. (See Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820, 124 Cal.Rptr.3d 256, 250 P.3d 1115 ( Oasis Realty ).)

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 Butterworth's 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 Civil Code section 1940.6, indicating they intended to remove the garage unit from their house. Two days later, Contreras's counsel, Charles M. Schaible, sent a letter directly to the Butterworths regarding Contreras's occupancy of the premises. On May 11, 2009, Dowling responded to Schaible's letter, informing counsel he was representing the Butterworths and responding to the various claims raised by Schaible involving Contreras's tenancy and occupation of the premises.

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, et al., San Francisco County Superior Court, case 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 former attorney, Sami Mason; and Roll and Fuentes. The complaint included a cause of action for tenant harassment. Not long after Dowling appeared as counsel for the Butterworths, Contreras filed a first amended complaint (FAC) alleging the same causes of action as contained in her original complaint, but adding Dowling and his law firm, Beckman, Marquez & Dowling LLP, as defendants. The FAC included the same allegations of tenant harassment against the Butterworths and Stuart, but added allegations that Dowling had "acted in violation" of San Francisco's tenant harassment ordinance. (See S.F. Admin. Code § 37.10(B).)

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 (No. A127379). 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.

Stuart filed an anti-SLAPP motion in response to the TAC, and after the trial court denied the motion, he appealed to this court (No. A137957 [nonpub. opn.] ). On October 25, 2013, we issued our opinion in Stuart's appeal (Contreras II ). We there discussed Contreras I, explaining that our earlier opinion had held "Contreras's claims for wrongful eviction and tenant harassment ... arose out of Stuart's alleged unlawful entry into [Contreras's] [a]partment[.]" Furthermore, our prior opinion established that Contreras had "stated a sufficient prima facie case that the Butterworths are liable for their tortious conduct." Nevertheless, the trial court was still obligated to engage in a separate anti-SLAPP analysis with respect to Contreras's claims against Stuart by determining whether those claims arose out of protected activity, and if so, whether Contreras had demonstrated a probability of prevailing on them. We concluded Stuart had forfeited any claim that his conduct arose out of protected activity, because he had not addressed the first prong of the anti-SLAPP analysis in his opening brief. We therefore affirmed the trial court's denial of Stuart's motion to strike.

The Fourth Amended Complaint

On ...