The California Court of Appeal confirmed in October 2016 (as amended last month) that an attorney's acts in connection with representing a client may constitute "protected activity" within the meaning of California's anti-SLAPP statute, rendering a complaint that alleges such behavior as a basis for liability subject to a Special Motion to Strike. Contreras v. Dowling, No. A142646 (Cal. Ct. App. Oct. 26, 2016), as modified (Nov. 18, 2016).

The decision is the latest in a lengthy and contentious landlord-tenant litigation, wherein Contreras sued her landlords, their son, and their former attorneys for tenant harassment and other activities arising out of entries into her apartment that she alleged were illegal. When attorney Dowling began representing the landlords, Contreras amended her pleading to allege an aiding and abetting cause of action in connection with the alleged unlawful entries. Dowling moved to strike the pleading under California's anti-SLAPP statute because, he asserted, all of the alleged behavior underlying Contreras's amended complaint (her fifth in the case) arose out of his representation of the landlords and constituted "protected activity" within the meaning of California's anti-SLAPP law. The trial court denied Dowling's motion, reasoning that Contreras sought to hold him liable "only for the underlying wrongful conduct of" the landlords under an aiding and abetting theory, which did not arise from protected activity, and awarded Contreras her fees.

The Court of Appeal reversed, holding that "the only actions Dowling himself is alleged to have taken are all communicative acts by an attorney," which were "unquestionably protected by" the anti-SLAPP statute. The court reaffirmed the principle that whether activity is "protected" under the statute focuses on "the acts on which liability is based," not on the legal theory of liability or, in the instant case, the activities of those whom the defendant is alleged to have aided and abetted.