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March 9, 2011 | Law Alert

Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435

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The Second District holds that claims against an attorney premised on illegal wiretapping are not subject to the anti-SLAPP statute because the activity is not constitutionally protected.

When Robert Pfeifer sued his former employer for wrongful termination, his ex-girlfriend Erin Finn was deposed and supported an allegation of drug use.  Pfeifer’s counsel hired investigator Anthony Pellicano to investigate Finn, ostensibly in her role as a witness in Pfeifer’s civil action. Pfeifer subsequently retained Gaims, who communicated with Pellicano.  Gaims also represented Pfeifer in a domestic harassment injunction filed by Finn, a collection matter filed against Finn, and a tort claim filed against Finn.

Four years after the Finn-Pfeifer dispute settled, Pellicano and Pfeifer were indicted on conspiracy and wiretapping charges. Pfeifer agreed to plead guilty and testified against Pellicano at his criminal trial.

Michael Gerbosi filed a complaint against Pacific Bell Telephone Company, Pellicano, Pfeifer, and Gaims alleging that the defendants conspired to intercept his confidential communications with his friend Finn by unlawful wiretaps and eavesdropping.

Finn filed a complaint contending that Pfeifer, Pellicano, and Gaims had “set out to destroy” her after she and Pfeifer separated, and that they conspired to use illegal wiretaps and harassing lawsuits to accomplish their goal.

Gaims filed a motion to strike both lawsuits under the anti-Strategic Lawsuit Against Public Participation (anti-SLAPP) statute, C.C.P. § 425.16.  Gaims asserted that all causes of action arose from petitioning activity on behalf of Pfeifer, a protected activity.  The trial court denied both anti-SLAPP motions, and awarded attorney’s fees to Finn and Gerbosi.

The analysis under an anti-SLAPP motion requires a two-step process.  In the first step, the court determines whether the claims arise from acts taken in furtherance of the defendant’s constitutional rights of petition or free speech, protected activity.  If so, the burden shifts to Plaintiff to demonstrate a probability of success on the merits.

In analyzing the merits, the court applies a “summary-judgment-like” test, accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law. A court may not weigh credibility or compare the weight of the evidence.
As a stranger to the Finn-Pfeifer litigation, Gerbosi’s claims did not “arise from” Gaims’s protected activity.  Gaims’s status as a lawyer did not render his alleged illegal wiretapping activities protected, and he is not entitled to the benefit of the anti-SLAPP statute.

Although Gaims represented Pfeifer in claims involving Finn, Gaims is not automatically protected by the statute.  There is no protection for the criminal conduct alleged by Finn because the anti-SLAPP statute does not cover activity that is illegal as a matter of law.  Activity is illegal as a matter of law when a defendant concedes it is illegal or the evidence conclusively shows this.

A defendant’s mere assertion that underlying activity is constitutionally protected does not shift the burden to plaintiff to show the activity was illegal.  Finn’s privacy cause of action was premised on the wiretapping activity.  Under no factual scenario could this illegal conduct be constitutionally protected.  Because the activity is not protected, the analysis ends and the court cannot consider Gaims’s merit-based argument that he did not engage in the conduct.

Finn’s remaining causes of action all arose from the protected activity of Gaims’s representation of Pfeifer.  Thus, under the second prong of the analysis Finn was required to show a “probability” of prevailing.

Although Finn was faced with a low burden, a reasonable possibility of winning, she did not meet this burden because her claims were indisputably barred by any statute of limitations.
While Finn was entitled to rely on delayed discovery of the wiretapping aspects of her claim, this did not revive her litigation-related causes of action.

Nor was Gaims equitably estopped from asserting the statute of limitations on the litigation related causes of action.  The court would not accept Finn’s argument that she was precluded from filing due to her fear of being sued by Gaims again.  Gaims did not engage in any conduct after the tort of prosecution of the wrongful litigation that would have deterred her from filing her lawsuit.

Both Gerbosi and Finn were entitled to their attorneys’ fees insofar as Gaims’s motion sought to strike claims based on wiretapping.  The motion directed to those claims was frivolous or solely intended to cause unnecessary delay, since wiretapping is not a constitutionally protected activity.

Comment: Gaims claimed that he did not engage in the conduct.  Unfortunately, the anti-SLAPP process is not the proper vehicle for establishing this merits-based defense.

Practice Area: Lawyers & Judges Defense Group
Attorney: Jennifer A. Becker

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