Contreras v. Dowling

LAURA ESMERELDA CONTRERAS,

Plaintiff and Respondent,

v.

CURTIS DOWLING et al.,

Defendants and Appellants.

No. A142646

(San Francisco County

Super. Ct. No. CGC09488551)

California Courts of Appeal

First Appellate District

Division Five

Filed November 18, 2016

ORDER MODIFYING OPINION

AND DENYING REHEARING

THE COURT:

     IT IS ORDERED that the opinion in the above-captioned case, filed on October 26, 2016, is modified as follows:

     On page 13, first line, delete footnote 6.  In addition, add the following new paragraph before part III.A.:

     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.?  (§ 425.16, subd. (b).)?  (City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79.)  Thus, the court is not limited to examining the allegations of the complaint alone but rather considers the pleadings and the factual material submitted in connection with the special motion to strike.  (Karnazes v. Ares (2016) 244 Cal.App.4th 344, 353-354 [considering pleadings, a declaration, and emails attached thereto at first step of anti-SLAPP analysis]; see Navellier, supra, 29 Cal.4th at p. 90 [?Examination of the relevant documents reveals that each of Sletten?s acts (or omissions) about which plaintiffs complain falls squarely within the plain language of the anti-SLAPP statute.?].)  We therefore examine the materials in the record to determine whether Contreras?s cause of action against Dowling arises from protected activity.

     On page 16, after the first paragraph, add the following:

     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.?  (JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477-478; see Schaffer v. City and County of San Francisco (2008) 168 Cal.App.4th 992, 1005 [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 (2008) 161 Cal.App.4th 1275, 1294; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.)  Nevertheless, we must consider her earlier pleadings in determining whether her claim against Dowling arises out of protected activity.  (§ 425.16, subd. (b)(2) [?In making its determination, the court shall consider the pleadings?].)  The allegations of the FAC are powerful evidence that her cause of action arises out of Dowling?s advice to his clients.

     On page 16, delete the first sentence of the second paragraph which reads:  ?Indeed, Contreras?s own contentions . . .? and replace with ?Further evidence comes from Contreras?s own contentions.?

     The petition for rehearing filed by respondent is denied.  There is no change in the judgment.

Dated

P.J.