A statement or writing made in a judicial proceeding is protected activity. (§ 425.16, subd. (e)(1)-(2).) Further, “ ‘communications preparatory to or in anticipation of the bringing of an action or other official proceeding … are equally entitled to the benefits of section 425.16.’ [Citations].” (Briggs v. Eden Council For Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [counseling tenants about anticipated litigation against a landlord is protected activity].) Prelitigation communications are “in furtherance of [a] person’s right of petition or free speech.” (§ 425.16, subd. (b)(1).). . . The activity underlying appellants’ claim—Locke’s legal representation of Rivergate in efforts to evict holdover tenants and collect unpaid rent—is constitutionally protected. “[A]ll communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479-481 [attorney’s acts on behalf of a client are protected, even if they violated child support evasion statutes, because the actions are not inherently criminal or outside the scope of routine legal services]; Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 806-807, 811 [attorney’s representation of a client is protected unless the acts amount to criminal conduct]; Contreras v. Dowling (2016) 5 Cal.App.5th 394, 408-409.) Locke’s notices to appellants to remove their RV from Rivergate and pay delinquent rent cite the Recreational Vehicle Park Occupancy Law (Civ. Code, § 799.20 et seq.); 72-hour written notices are required by that law (Id, §§ 799.55, 799.56), which states that RV park management may exercise all legal rights against a defaulting occupant (Id, § 799.40), and specifically incorporates the unlawful detainer statutes (Id, §§ 799.67, 799.71.) Sending a notice to quit and pay rent is not “expressly illegal” activity, as appellants suggest, because giving notice is a prerequisite to removing an occupant of an RV park who is in default. The notices sent by Locke were a preamble to an unlawful detainer action or action to collect unpaid rent; as such, it is protected activity under section 425.16. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480 [service of a three-day notice is protected activity because it is a prerequisite to an unlawful detainer action]; Birkner v. Lam (2007) 156 Cal.App.4th 275, 281-282.)3 Attorneys cannot be sued “for the sole ‘crime’ of representing their clients.” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 204-205.) Because appellants’ lawsuit attacks the attorney’s service of three-day notices on behalf of a client, Locke has established the first prong of the SLAPP analysis.
The Court of Appeal held that the Plaintiff was unlikely to succeed on the Rosenthal Act claim because the defendant law firm did not regularly engage debt collection activity.
To show that an attorney is a “debt collector,” the plaintiff in a FDCP action must prove that that the attorney’s debt collection practice is steady, usual, and customary, encompassing a pattern of collection activity and personnel dedicated to it. (James v. Wadas (10th Cir. 2013) 724 F.3d 1312, 1316-1319.) This showing is not made if the attorney handled six to eight debt collection cases in 10 years. (Id. at pp. 1318-1319. Accord: Schroyer v. Frankel (6th Cir. 1999) 197 F.3d 1170, 1173, 1176-1177 [law firm handling 50-75 collection cases annually was not a “debt collector” because the work was less than two percent of the firm’s practice, personnel was not dedicated to it, and it was incidental to the firm’s work].) Appellants did not make a prima facie showing that Locke is a “debt collector.” Sending five eviction notices in four years does not make Locke a “debt collector,” when there is no evidence that collecting debts is a steady, customary part of his practice. Appellants unavailingly rely on a factually distinguishable case in which an attorney’s dunning letter stated that he is “ ‘acting as a debt collector’ ”; this admission showed that the attorney fell within the FDCP Acts. (Welker v. Law Office of Daniel J. Horwitz (S.D. Cal. 2009) 626 F.Supp.2d 1068, 1072. See also Welker v. Law Office of Daniel J. Horwitz (S.D. Cal. 2010) 699 F.Supp.2d 1164, 1166 [defendant attorney’s business is collecting unpaid debts for creditors].)