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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


MARY NOLAN et al.,
         Defendants and Appellants,
                                                                     A135953
v.
DECLAN WOODS,                                                        (Contra Costa County
                                                                     Super. Ct. No. C12-00505)
         Plaintiff and Respondent.

         Plaintiff Declan Woods sued Louise Woods, his ex-wife, Mary Nolan, Woods’s
attorney (collectively, defendants), and two other individuals who, he alleged, were all
involved in setting him up to be arrested for driving under the influence of alcohol (DUI).
The scheme was allegedly concocted to give Louise Woods an advantage in their then-
pending dissolution proceeding. Woods and Nolan filed a special motion to strike the
complaint as a Strategic Lawsuit Against Public Participation (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 alleged 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.


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                                     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 about 30 minutes later Lauren arrived with an
unidentified female friend. They asked if they could join plaintiff at his table and he
agreed. Lauren ordered a round of drinks, and struck up a conversation with plaintiff.
Later Lauren suggested they go to a club for more drinks; plaintiff agreed. At the club
Lauren “insisted that plaintiff drink shots of hard alcohol,” and she continued to order
rounds of drinks. Lauren also became increasingly flirtatious with plaintiff and at one
point “jumped into plaintiff’s lap and began kissing 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 about these events. He tried to call Lauren
within days of the incident, but her phone was disconnected. He also learned Lauren did
not live at the address where he met her; rather, 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.


                                                2
and sent a message asking whether the incident had been set up. Lauren responded she
had been hired by a private investigator to meet with plaintiff and get him intoxicated.
Lauren did not identify the investigator or any other persons involved.
       Plaintiff suspected that Woods had set him 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, plaintiff pled no contest to the DUI charge. Plaintiff’s license
was suspended, he was fined, and he was ordered to attend an alcohol awareness
program. Plaintiff’s and Woods’s dissolution became final in November 2007.
       In March 2011, plaintiff was contacted by a reporter for the San Francisco
Chronicle. The reporter suggested that plaintiff 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 request of the men’s wives. According to the
reporter, the scheme became known in the media 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 actions. Prior to March 2011, plaintiff knew
nothing about Butler and “never even contemplated the possibility 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 contact plaintiff, get him intoxicated, then ask him to follow
her home. Butler observed plaintiff leaving the parking lot following Lauren, and called
911 to report him. Plaintiff later learned from other documents that Nolan had hired
Butler to set up plaintiff to be arrested for a DUI during the pendency 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 withdraw his plea of no contest to the D.U.I.
charge, and the charge was dismissed. Prior to the “Dirty D.U.I.,” plaintiff had no



                                             3
criminal record of any kind, “including no arrests or convictions 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 enhancement.” Plaintiff alleged that
defendants’ acts were “outrageous and unprivileged,” and as a result “plaintiff suffered
an arrest and criminal prosecution, severe stress, upset, humiliation, emotional distress
and other damages.” Plaintiff also sought punitive damages, alleging the acts were done
with “malice, oppression, fraud, and/or conscious disregard for the rights and safety of
plaintiff.”
                               THE MOTION TO STRIKE
       Defendants filed an anti-SLAPP motion, contending that “the complaint arises
from defendants’ acts in furtherance of their constitutional right to petition through
judicial proceedings and that plaintiff cannot establish probability of prevailing on its
[sic] claims.” According 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 statute. Defendants further argued that the
communications were protected by the litigation privilege and therefore plaintiff could
not establish a probability of prevailing on the 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 themselves on matters relating to the divorce
proceedings, but rather that defendants “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 respect to the demurrer, the court overruled the
demurrers to the causes of action for negligence, intentional infliction of emotional


                                              4
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 the 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 . . . shall be subject to a special motion to strike,
unless the court determines that the plaintiff has 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 legislative, 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 and petition for the redress of grievances,”
(§ 425.16, subd. (a)) and provides “an efficient 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 motion to strike. (§ 425.16, subd. (b)(1).)


                                               5
“[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 response to protected activity, or even 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 plaintiff’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, collateral allusions to protected 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 step [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 determine whether [plaintiff’s] causes of action arose from acts
by [defendants] in furtherance 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 wrongful acts on which the claims are based
were defendants’ concerted efforts to set up plaintiff to be arrested for a DUI, and this
conduct cannot be characterized as a valid exercise of defendants’ constitutional right to
speech or to petition.
          In attempting to bring their actions within the anti-SLAPP statute, defendants
argue, first, that Nolan hired Butler (through her paralegal) for the sole purpose of


                                                 6
surveilling plaintiff to determine whether he was working, and for whom. Defendants
argue this was protected activity 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 whether 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 income-
producing 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 communications, 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 contents 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] communications [were] made in connection with an issue under
consideration or review by a judicial body.” Defendants reason that “liability hinges on
alleged communications by Nolan, as [Woods’s] counsel, to help further [Woods’s]
interests in the dissolution proceeding by Nolan allegedly 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 contend that plaintiff “can only point to
communications by Nolan as [Woods’s] counsel to Butler to link her to the alleged set-


                                               7
up. Nolan does not deny she asked Butler to surveil [plaintiff.] That is no evidence she
asked Butler to set [plaintiff] up. Though plaintiff may allege it was Nolan’s
communication that somehow resulted in his 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 gathering 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 enumerated 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 [plaintiff] 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. Clearly they were not. It is not alleged that
defendants are liable to plaintiff because they communicated with one another. It is
alleged, rather, that defendants are liable for the actions of Gard and Butler in setting up
plaintiff for a DUI, and that Gard and Butler were acting as agents of Nolan and Woods.
The allegation that all defendants “agreed and intended” that the scheme be carried out
relates not to the underlying tortious conduct, 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 arises out of protected activity court must
distinguish between speech or petitioning activity that is mere evidence of liability and
speech or petitioning activity that 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 official proceeding. (§ 425.16, subds. (e)(1), (e)(2).) Rather


                                               8
they were, according to the complaint, communications made for the purpose of setting
up plaintiff for a DUI arrest.
       Third, we flatly reject defendants’ argument that setting a “Dirty DUI” trap for one
litigant in order to achieve an advantage for the opposing 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 activity—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 conduct that was unrelated to actual petitioning
activity. “If the core injury-producing conduct upon which the plaintiff’s claim is
premised does not rest on protected speech or petitioning activity, collateral or incidental
allusions to protected activity will not trigger 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 complaint arises out of the litigation. Thus, for
example, in United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP
(2009) 171 Cal.App.4th 1617, the plaintiff sued a law firm seeking to enjoin it from
representing adverse parties in a pending action because the law firm had previously
represented the plaintiff in a related action. (Id. at pp. 1620–22.) The complaint included
allegations describing confidential information the plaintiff had disclosed to the firm


       3
          Defendants attempt to distinguish Hylton by arguing that “here, the complaint
does not merely allude to protected activity, but singularly focuses on it. [Plaintiff’s]
complaint rests solely on the allegation that Nolan, on behalf 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 Nolan or [Woods] to the alleged DUI set-up,
which makes it more than incidental.” 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.


                                              9
during the prior action, and describing the similarity 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, explaining that the gravamen of the complaint was
not the firm’s representation of the adverse parties in litigation, but rather, the firm’s
breach of fiduciary duty to its former client, which is not protected activity. “[T]he
principal thrust of the misconduct averred in the underlying complaint is the acceptance
by [the firm] of representation adverse to [plaintiff]. To the extent the complaint refers to
events taking place during [the firm’s] participation in the [prior] [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 plaintiff and representing another plaintiff in
the same litigation does not arise out of protected activity]; Benasra v. Mitchell
Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179 [breach of fiduciary duty lawsuit
“may follow litigation pursued against 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” between Woods and Nolan “to help further
[Woods’s] interests in the dissolution proceeding by allegedly communicating
instructions to Butler to set [plaintiff ] up to get a DUI to gain an advantage in the divorce
proceedings.” We cannot see how this qualifies 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 authority, and defendants cite none, holding that
allegedly tortious conduct independent of a court proceeding is nonetheless “protected
activity” merely because the tortfeasor intends the results to benefit one party in pending
litigation. Indeed, such a principle would be perverse. There is no constitutionally


                                              10
protected right to gain an advantage in a judicial proceeding based upon extrinsic tortious
conduct.
       Defendants contend, finally, that the trial court relied on inadmissible evidence in
finding that plaintiff’s claims did not arise out of protected activity; they assert that the
declarations submitted on plaintiff’s behalf in opposition to the anti-SLAPP motion
contain hearsay and privileged 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 plaintiff’s claims implicated defendants’
constitutional rights. Rather, the court relied on the allegations of the complaint itself in
rejecting defendants’ contention that the claims were based on “communications . . . in
connection with the pending dissolution proceeding.” The trial court concluded that the
gravamen of the action “is not that the surveillance was effected by communications from
Nolan during divorce proceedings, or that Nolan . . . 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 driving 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.




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                                 _________________________
                                 Rivera, J.


We concur:


_________________________
Reardon, Acting P.J.


_________________________
Humes, J.




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