1 Filed 1/22/14 Nolan v. Woods CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MARY NOLAN et al., Defendants and Appellants,

v. DECLAN WOODS, Plaintiff and Respondent. A135953

(Contra Costa County Super. Ct. No. C12-00505)

Plaintiff Declan Woods sued Louise Wo ods, his ex-wife, Mary Nolan, Woods’s attorney (collectively, defendants), and two ot her individuals who, he alleged, were all involved in setting him up to be arrested for driving under th e influence of alcohol (DUI). The scheme was allegedly concocted to give Louise Woods an advantage in their thenpending dissolution proceeding. Woods and Nolan filed a sp ecial motion to strike the complaint as a Strategic Laws uit Against Public Particip ation (SLAPP). (Code Civ. Proc., § 425.16.) 1 The trial court denied the motion to strike, and defendants appeal. We affirm the order denying the anti-SLAPP motion because we conclude, as did the trial court, that the claims allege d in the complaint do not arise out of protected speech or petitioning activity.

1 All further statutory citations are to the Code of Civil Procedure, unless otherwise expressly stated.2 THE COMPLAINT In February 2012, plaintiff filed an action against Nolan, Woods, Christopher Butler, and Lauren Gard. 2 His complaint alleged the following facts:

Plaintiff and Woods were married in 1991 . In March 2007, Woods filed a petition for dissolution of the marriage. At the time the petition was filed, plaintiff and Woods had two minor children, ages 7 and 10. Plaintiff is a general contractor by trade. In July 2007, plaintiff was contacted by an individual named Lauren, who requested he provide an estimate for a kitchen remodel. Plaintiff went to the address given by Lauren and spoke with her about potential ways to do the remodeling. After their discussion, Lauren asked plaintiff where he was going; plaintiff responded he was going to Ed’s Mudville Grill, then home. Plaintiff went to the restaurant, and abou t 30 minutes later Lauren arrived with an unidentified female friend. They asked if th ey could join plaintiff at his table and he agreed. Lauren ordered a round of drinks, an d struck up a conversati on with plaintiff. Later Lauren suggested they go to a club for more drinks; pl aintiff agreed. At the club Lauren “insisted that plaintiff drink shots of hard alcohol,” and she continued to order

rounds of drinks. Lauren also became increa singly flirtatious with plaintiff and at one point “jumped into plaintiff’s lap and began kissi ng him on the lips.” Plaintiff had to push her off his lap to stop embarrassing him. After several rounds of drinks, Lauren suggested that plaintiff follow her to her house to go “hot-tubbing,” and he accepted. Plaintiff got in his truck and began to follow Lauren who was driving her car. Within a few blocks, plaintiff was stopped by police, who administered a field sobriety test and arrested him for DUI. Plaintiff was immediately suspicious abou t these events. He tried to call Lauren within days of the incident, but her phone wa s disconnected. He al so learned Lauren did not live at the address where he met her; rath er, the home was for sale and Lauren did not have any right to be there when he met with her. Plaintiff found an e-mail address for her

2 Butler and Gard are not parties to this appeal.3 and sent a message asking whether the incide nt had been set up. Lauren responded she had been hired by a private inve stigator to meet with plain tiff and get him intoxicated. Lauren did not identify the investigator or any other persons involved. Plaintiff suspected that Woods had set hi m up. He confronted her about it several times over the next two years, and she always denied it. In one e-mail she wrote, “ ‘You are insane! How do you pay for someone to get a D.U.I.!?’ ” In September 2007, plainti ff pled no contest to the DUI charge. Plaintiff’s license was suspended, he was fined, and he wa s ordered to attend an alcohol awareness program. Plaintiff’s and Woods’s dissolu tion became final in November 2007. In March 2011, plaintiff was contac ted by a reporter for the San Francisco Chronicle. The reporter suggested that plai ntiff may have been set up for his DUI. The reporter stated that other men involved in divorce proceedings had been set up by a private investigator named Butler at the reque st of the men’s wives. According to the reporter, the scheme became known in the medi a as “Dirty D.U.I.’s” which were being orchestrated by Nolan to make male spouses “look bad” in order to gain an advantage regarding matters being litigated in divorce ac tions. Prior to March 2011, plaintiff knew nothing about Butler and “never even contemplated the possib ility that Nolan, an officer of the court, had any involvement in the Dirty D.U.I. scheme.” In June 2011, plaintiff was interviewed by two F.B.I. agents who confirmed that

Butler had hired Lauren to co ntact plaintiff, get him intoxicated, then ask him to follow her home. Butler observed pl aintiff leaving the parking lo t following Laur en, and called 911 to report him. Plaintiff later learne d from other documents that Nolan had hired Butler to set up plaintiff to be arrested for a DUI during the pendenc y of plaintiff’s and Woods’s divorce proceedings. In the same documents, he learned Lauren’s last name

was Gard. After the revelation that plaintiff had been the victim of a “Dirty D.U.I.” scheme, in January 2012, plaintiff was allowed to wit hdraw his plea of no contest to the D.U.I. charge, and the charge was dismissed. Pr ior to the “Dirty D.U.I.,” plaintiff had no4 criminal record of any kind, “including no arrests or convi ctions for driving under the

influence.” In the complaint, plaintiff alleged five causes of action against all defendants: negligence, intentional infliction of emotional distress, fraud, abuse of process, and false arrest/false imprisonment, with a “civil conspiracy enhancemen t.” Plaintiff alleged that defendants’ acts were “outrageous and unpriv ileged,” and as a re sult “plaintiff suffered an arrest and criminal pros ecution, severe stress, upset, humiliation, emotional distress and other damages.” Plainti ff also sought punitive damages, alleging the acts were done with “malice, oppression, fraud, and/or cons cious disregard for the rights and safety of plaintiff.”

THE MOTION TO STRIKE Defendants filed an anti-SLAPP motion, co ntending that “the complaint arises

from defendants’ acts in furtherance of th eir constitutional right to petition through judicial proceedings and that plaintiff ca nnot establish probability of prevailing on its [sic] claims.” A ccording to defendants, they were being sued for their communications to one another which were “directly related” to issues in the pending dissolution proceeding, bringing the action within the anti-SLAPP st atute. Defendants further argued that the communications were protected by the litigati on privilege and theref ore plaintiff could not establish a probability of prevailing on th e merits. In the alternative, defendants asserted that plaintiff could not prevail because his claims were barred by the doctrine of unclean hands, by the statute of limitations, and by the failure to state a cause of action. Defendants also filed a demurrer to the complaint. The demurrer and special motion to strike were heard together. The trial court denied the special motion to strike, concluding that the gravamen of plaintiff’s action was not that defendants communicated among themse lves on matters relating to the divorce proceedings, but rather that de fendants “engaged in a scheme to entrap [plaintiff] into driving under the influence in order to gain an advantage,” and therefore the action did not arise out of protected activity. With re spect to the demurrer, th e court overruled the demurrers to the causes of action for neglig ence, intentional infliction of emotional5 distress and fraud, but sustained without leave to amend the causes of action for abuse of process and false arrest/imprisonment. Defendants appealed from the trial court’s “Decision on Motions and Amended

Decision on Motions.” As is made clear in the Notice of Appeal and the Appellants’ Opening Brief, however, the appeal is only from th e denial of the special motion to strike.

THE LEGAL PRINCIPLES Section 425.16 provides: “A cause of action against a person arising from any act of that person in furtherance of the person’ s right of petition or free speech under the

United States or California Constitution . . . sha ll be subject to a special motion to strike, unless the court determines that the plaintiff ha s established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) An “act in furtherance of a person’s right of petition or free speech ” includes “any written or oral statement or writing” made in an official proceeding or “made in connection with an issue under consideration or review by a le gislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16, subds. (e)(1), (e)(2).) The anti-SLAPP statute was enacted to prevent and deter lawsuits that “chill the valid exercise of the constitutional rights of freedom of speech an d petition for the redre ss of grievances,” (§ 425.16, subd. (a)) and provides “an efficien t procedural mechanism to obtain an early and inexpensive dismissal of nonmeritorious claims” arising from the exercise of those constitutional rights. ( Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 186 ( Martinez ); Flatley v. Mauro (2006) 39 Cal.4th 299, 311–312.) An anti-SLAPP motion requires the court “to engage in a two-step process. First,

the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” ( Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 ( Equilon Enterprises ).) Second, “[i]f the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” ( Ibid. ) Only those causes of action “arising from ” the defendant’s protected speech or petitioning activity are subject to a special moti on to strike. (§ 425.16, subd. (b)(1).)6 “[T]he ‘arising from’ requirement is not always easily met. [Citations.]” ( Equilon Enterprises, supra, 29 Cal.4th at p. 66.) It is not enough that an action was filed after protected activity, or in respon se to protected activity, or ev en in retaliation for protected activity. ( Ibid. ; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76 –78.) Instead, “the critical point is whether the plai ntiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” ( City of Cotati, supra, at p. 78.) Additionally, “it is the principal thrust or gravamen of the plaintiff’s cause of

action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collate ral allusions to prot ected activity should not subject the cause of action to the anti-SLAPP statute.” ( Martinez, supra, 113 Cal.App.4th at p. 188.)

“The trial court’s determination of each st ep [of the process] is subject to de novo review on appeal.” ( Martinez, supra, 113 Cal.App.4th at p. 186.) “ ‘[W]e apply our independent judgment to determ ine whether [plaintiff’s] causes of action arose from acts by [defendants] in furtheranc e of [defendants’] right of petition or free speech. . . . [Citations.]’ ” ( Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 608–610, quoting Thomas v. Quintero (2005) 126 Cal. App.4th 635, 645, italics omitted.)

APPLICATION OF THE LEGAL PRINCIPLES Applying the principles we have just set forth, we agree with the trial court that

defendants have failed to make the threshold showing that the causes of action alleged in the complaint arose out of conduct that is protected under the state or federal constitutions. As we explain, the alleged wr ongful acts on which the claims are based were defendants’ concerted efforts to set up pl aintiff to be arrested for a DUI, and this

conduct cannot be charact erized as a valid exercise of defendants’ constitu tional right to speech or to petition. In attempting to bring their actions w ithin the anti-SLAPP statute, defendants argue, first, that Nolan hired Butler (through her paralegal) for the sole purpose of7 surveilling plaintiff to determ ine whether he was working, and for whom. Defendants argue this was protected ac tivity because plaintiff was seeking spousal support from Woods in the dissolution proceeding. As authority, defendants rely on Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1068, in which the court held that an attorney’s hiring of a private investigator to determine whet her the City Attorney had a conflict of interest was protected activity. Defendants’ point might be well taken if plaintiff had alleged that defendants were liable to him for damages as a result of Nolan hiring Butler to conduct surveillance of his work activities for legitimate litigation purposes, such as to investigate plaintiff’s incomeproducing capacity. But he did not. Plaintiff alleges, rather, that Woods, Nolan, Butler, and Gard engaged in a concerted plan to set plaintiff up to be arrested for a DUI. As we discuss below, a scheme to have an opposing party arrested for a crime is not a legitimate litigation activity. Accordingly, Tichinin and the other cases cited by defendants, involving litigation-related comm unications, do not apply. (See Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1058–1059 [statute applied to fraud cause of action based on factual assertion pertaining directly to issues in dispute in litigation]; Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, 610–612 [statute applied to cause of action based on co ntents of report prepared at the request of defense counsel in response to plaintiff’s discovery request].

Defendants next contend that each cause of action alleged by plaintiff “arises out of protected activity because [plaintiff’s ] claim is based entirely on alleged communications between Nolan as [Woods’s] counsel and Butler, and supposedly Gard [and that these] communicatio ns [were] made in connec tion with an issue under consideration or review by a judicial body.” Defendants reas on that “liability hinges on alleged communications by Nola n, as [Woods’s] counsel, to help further [Woods’s] interests in the dissolution pr oceeding by Nolan alle gedly communicating instructions to Butler to set [plaintiff] up to get a DUI to gain an advantage in the divorce proceedings.” Further explaining their theory defendants co ntend that plaintiff “can only point to communications by Nolan as [Woods’s] counse l to Butler to link her to the alleged set-8 up. Nolan does not deny she asked Butler to su rveil [plaintiff.] That is no evidence she asked Butler to set [plaintiff] up. Thou gh plaintiff may allege it was Nolan’s

communication that somehow resulted in hi s DUI, her communications to Butler to investigate him were protected activity.” This argument is flawed in at least three ways. First, as we have noted, it does not matter that Nolan claims to have hired Butler to surveil plaintiff only for purposes of gatherin g evidence on the issue of spousal support. In determining the first prong of a special motion to strike we are not concerned with disputed factual issues, or whether plaintiff can prove the allegations of his complaint. The sole question before us at this juncture is whether the acts alleged in the complaint are of the type that fall within the enum erated categories of section 425.16. ( Equilon Enterprises, supra, 29 Cal.4th at p. 67.) Accordingly, Nolan’s contention that her hiring of Butler is “no[t] evidence she asked Butler to set [plaintif f] up” is irrelevant to the

threshold issue. Second, the fact that defendants would necessarily have communicated with each other in order to accomplish their scheme does not mean that the communications were the acts on which the complaint is based. Clea rly they were not. It is not alleged that defendants are liable to plaintiff because th ey communicated with one another. It is alleged, rather, that defendants are liable fo r the actions of Gard and Butler in setting up plaintiff for a DUI, and that Ga rd and Butler were acting as agents of Nolan and Woods. The allegation that all defendants “agreed an d intended” that the scheme be carried out relates not to the underlying tortious condu ct, but to the conspiracy enhancement. ( Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1214–1215 [in deciding whether an action aris es out of protected activity court must distinguish between speech or petitioning activ ity that is mere evidence of liability and speech or petitioning activity th at is the basis for liability]. ) But even if defendants’

communications were the basis for plaintiff’s claim, the anti-SLAPP statute still would not apply, because the communications among them were not “written or oral statement[s] or writing[s]” made in an official proceeding or made in connection with an issue being considered in an o fficial proceeding. (§ 425.16, subds. (e)(1), (e)(2).) Rather9 they were, according to the complaint, communications made for the purpose of setting up plaintiff for a DUI arrest. Third, we flatly reject de fendants’ argument that setting a “Dirty DUI” trap for one litigant in order to achieve an advantage for the oppos ing litigant is an “act in furtherance of the person’s right of petition or free speech under the United States or the California Constitution. . . .” (§ 425.16 subd. (b)(1).) Although petitioning ac tivity—the dissolution proceedings—is “part of the evidentiary landscape ” of the complaint ( Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App. 4th 1264, 1272), the gravamen of plaintiff’s claims is that defendants engaged in tortious cond uct that was unrelated to actual petitioning activity. “If the core injury-producing conduct upon which th e plaintiff’s claim is premised does not rest on prot ected speech or petitioning activ ity, collateral or incidental allusions to protected activity will not trigge r application of the anti-SLAPP statute.” ( Id. at p. 1272.) 3 The fact that a complaint mentions or describes litigation in relation to the causes of action alleged does not mean the complain t arises out of the litigation. Thus, for example, in United States Fire Ins. Co. v. Shepp ard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, th e plaintiff sued a law firm seeking to enjoin it from representing adverse parties in a pending ac tion because the law firm had previously represented the plaintiff in a related action. ( Id. at pp. 1620–22.) The complaint included allegations describing confidential informati on the plaintiff had disclosed to the firm

3 Defendants attempt to distinguish Hylton by arguing that “her e, the complaint does not merely allude to protected activity, but singular ly focuses on it. [Plaintiff’s] complaint rests solely on the allegation that Nolan, on be half of [Woods] communicated something to Butler,” i.e ., the instruction to set him up for a DUI. Thus, defendants argue, “it is a communication which is central— not incidental—to his claim. [¶] Without the communication, [plaintiff] cannot link No lan or [Woods] to the alleged DUI set-up, which makes it more than inci dental.” This argument is repeated at length in defendants’ reply brief. But it matters not at all whether plaintiff’s claims against Nolan and Woods cannot be proven without evidence of the communication. The question is whether the complaint is predicated on the act of communicating. As we have concluded, it is not.10 during the prior action, and describing the simila rity of the issues in the prior and pending actions. ( Id. at pp. 1620–21.) The law firm filed a special motion to strike, contending the complaint was based on the firm’s “acts . . . in furtherance of its right of petition and free speech.” ( Id. at p. 1622.) The trial court agreed, and granted the motion. ( Id. at pp. 1620, 1624.) This court reversed, explaini ng that the gravamen of the complaint was not the firm’s representation of the adverse pa rties in litigation, bu t rather, the firm’s breach of fiduciary duty to its former client, which is no t protected activity. “[T]he principal thrust of the misconduct averred in the underlying complaint is the acceptance by [the firm] of representation adverse to [plain tiff]. To the extent the complaint refers to events taking place during [the fi rm’s] participation in the [pri or] [l]itigation, its evident purpose is to support the conclusion that the two matters are substantially related. . . . Thus, reference to protected activity is only incidental to the principal thrust of the complaint.” ( Id. at p. 1628; see also Freeman v. Schack (2007) 154 Cal.App.4th 719 [action against lawyer for abandoning one plai ntiff and representing another plaintiff in the same litigation does not aris e out of protected activity]; Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179 [breac h of fiduciary duty lawsuit “may follow litigation pursued ag ainst the former client, but does not arise from it.”].) Here, defendants argue that the complaint arises out of protected activity because liability hinges on “communications” betw een Woods and Nolan “to help further [Woods’s] interests in the dissolution proceeding by allegedly communicating instructions to Butler to set [p laintiff ] up to get a DUI to ga in an advantage in the divorce proceedings.” We cannot see how this qualifie s as valid petitioning activity. As has been painstakingly explained in many cases, “[i]n the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of defendant’s right of petition or free speech.” ( Gallanis-Politis v. Medina, supra, 152 Cal.App.4th at p. 610.) We know of no au thority, and defendants cite none, holding that allegedly tortious conduct independent of a court proceeding is nonetheless “protected activity” merely because the tort feasor intends the results to benefit one part y in pending litigation. Indeed, such a principle would be perverse. There is no constitutionally11 protected right to gain an adva ntage in a judicial proceeding based upon extrinsic tortious

conduct. Defendants contend, finally, that the tria l court relied on inadmissible evidence in finding that plaintiff’s claims did not arise out of protected activity; they a ssert that the declarations submitted on plai ntiff’s behalf in oppositi on to the anti-SLAPP motion contain hearsay and priv ileged information. Defendants’ premise is incorrect. Plaintiff

did not introduce evidence to support his opposition to the first prong of the anti-SLAPP analysis, and there is nothing in the trial court’s statement of decision indicating it relied

on any evidence to determine whether plainti ff’s claims implicated defendants’ constitutional rights. Rather, the court relied on the allegations of the complaint itself in rejecting defendants’ contention that the clai ms were based on “communications . . . in connection with the pending dissolution proceedi ng.” The trial court concluded that the gravamen of the action “is not that the su rveillance was effected by communications from Nolan during divorce proceedings, or that No lan . . . conducted an investigation into plaintiff’s activities for purposes of the divorce proceeding. . . . Instead, the gravamen of Plaintiff’s action . . . is the alleged scheme to entrap him into driv ing under the influence in order to gain an advantage.” This ruling does not reflect consideration of any evidence proffered by plaintiff.

DISPOSITION The order denying the special motion to strike is affirmed.12 _ ____________ ____________ Rivera, J.

We concur:

_____________ ____________ Reardon, Acting P.J.

_____________ ____________ Humes, J.