Friday, October 28, 2016
Court of Appeal Tosses Suit Accusing Lawyer Of Advising Landlord to Harass Tenants
By a MetNews Staff Writer
An amended pleading that accused an attorney of repeatedly advising his landlord clients to enter a tenant’s apartment illegally should have been stricken under the anti-SLAPP law, the First District Court of Appeal has ruled.
Div. Five Wednesday reversed San Francisco Superior Court Judge Paul H. Alvarado and threw out Laura Contreras’s claim against attorney Curtis Dowling.
Contreras originally sued landlords Gordon and Carol Butterworth, along with their son, and the Butterworths’ original attorneys for tenant harassment and other causes of action based on alleged illegal entries. After Dowling became the landlords’ attorney, Contreras filed her amended complaint, accusing him of aiding and abetting his clients’ illegal entries.
Dowling argued in his anti-SLAPP motion that the claim arose entirely from protected activity. Evidence presented in connection with the motion established that the Butterworths had leased their house to another couple, who built an unauthorized garage unit and rented it to Contreras.
When the main tenants moved out, the Butterworths asked Contreras to vacate. She refused, and the landlords hired a lawyer to commence eviction proceedings.
After that attorney brought two unlawful detainer proceedings, the Butterworths hired Dowling, who served Contreras with a Civil Code §1940.6 notice of intent to remove the garage unit from the house. Contreras then filed her harassment suit.
Dowling subsequently served Contreras with a 60-day notice of termination of tenancy under a city ordinance.
Contreras did not vacate within the 60 days, and Dowling commenced another unlawful detainer action. The action was unsuccessful, but Contreras subsequently vacated, although she continued her harassment action.
The trial judge in that case struck a wrongful eviction cause of action on the Butterworths’ anti-SLAPP motion, but the Court of Appeal reversed. It found that all of the tenant’s claims arose from protected activity, but that Contreras showed a sufficient likelihood of prevailing on the harassment claim because there was evidence that some of the Butterworths’ actions were not protected activity.
In her amended pleading, Contreras alleged that Dowling “aided and incited” the Butterworths’ son, who was managing the property, to enter the apartment without Contreras present and without her permission, “by breaking or causing to be broken the lock on the Apartment door.”
In denying the attorney’s anti-SLAPP motion, Alvarado concluded that Dowling was not merely being accused of giving legal advice but with being responsible for “the actual conduct” of the landlords and their agent “in breaking into Contreras’ unit.”
But Presiding Justice Barbara J.R. Jones, writing for the Court of Appeal, said that all of Dowling’s alleged actions were “communicative acts by an attorney representing clients in pending or threatened activity,” and thus protected activity as defined by Code of Civil Procedure §425.16. “Bare allegations of aiding and abetting or conspiracy do not suffice to remove these acts from the protection of the statute,” she added.
The jurist also concluded that Contreras could not prevail on the merits because all of the alleged conduct was within the scope of the litigation privilege.
Jones explained that the sole focus of the anti-SLAPP inquiry should have been on Dowling’s conduct, not that of his clients. The only evidence offered to show that he acted improperly, the jurist noted, were a letter he sent to Contreras’s counsel and an excerpt from the property manager’s deposition in which he testified he had hired a locksmith to open the apartment door on Dowling’s advice.
Nothing in the letter or the deposition links Dowling to any unprotected activity, Jones said.
As for the litigation privilege, she went on to say, “this case is not a close one.” She cited See Rubin v. Green (1993) 4 Cal.4th 1187, which held that the privilege protected lawyers’ communications during a meeting with potential clients to discuss the merits of a proposed lawsuit and the filing of pleadings.
The case is Contreras v. Dowling, 16 S.O.S. 5329.
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