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Michael Gerbosi et al v. Gaims

March 9, 2011

MICHAEL GERBOSI ET AL., PLAINTIFFS AND RESPONDENTS,
v.
GAIMS, WEIL, WEST & EPSTEIN, LLP ET AL., DEFENDANTS AND APPELLANTS.



(Los Angeles County Super. Ct. Nos. BC388812 & BC388664) APPEAL from orders of the Superior Court of Los Angeles County, Peter D. Lichtman, Judge.

The opinion of the court was delivered by: Bigelow, P. J.

CERTIFIED FOR PUBLICATION

Affirmed in part, reversed in part, and remanded.

This appeal arises from two of many lawsuits seeking damages allegedly caused by the activities of private investigator Anthony Pellicano and others. Michael Gerbosi has filed a complaint against Pellicano and Gaims, Weil, West & Epstein, LLP (Gaims),*fn1 a law firm that allegedly accepted the fruits of Pellicano's activities. Erin Finn has also filed a complaint against Gaims. This appeal follows protracted proceedings on separate anti-SLAPP motions filed by Gaims to strike Gerbosi's and Finn's complaints. (See Code Civ. Proc., § 425.16.)*fn2 The trial court issued an order denying both motions, leaving Gerbosi's and Finn's complaints to proceed unabated against Gaims. Later, the court entered an order jointly awarding attorneys' fees to Gerbosi and Finn in an amount of roughly $220,000.

Gaims appealed and we affirm the trial court's rulings on Gaims's anti-SLAPP motion to strike Gerbosi's complaint. All of Gerbosi's causes of action against the law firm may proceed, and Gerbosi may recover attorneys' fees incurred in opposing the anti-SLAPP motion. We affirm in part the trial court's rulings on Gaims's anti-SLAPP motion to strike Finn's complaint. Her causes of action alleging unlawful wiretapping-related claims may proceed, but her causes of action alleging that Gaims engaged in wrongful acts in the course of underlying litigation must be stricken. As a result, the attorneys' fees in favor of Finn must be denied.

FACTS

Background

A long time ago, Finn dated Robert Pfeifer, a former executive at Sony Records, Hollywood Records, and Z-Axis, Ltd., a video game developer. According to Pfeifer, he ended their relationship in 2000 upon learning that Finn operated an internet prostitution service. At about the same time that Pfeifer and Finn were parting, Z-Axis fired Pfeifer for the stated reason that he was using illegal drugs. Pfeifer then sued Z-Axis for wrongful termination. During the summer of 2000, Finn testified at a deposition in Pfeifer's wrongful termination case, stating that she had seen him using illegal drugs. Pfeifer and his lawyers then hired Pellicano to "investigate" Finn, ostensibly in her role as a witness in Pfeifer's civil action against Z-Axis. By the end of 2000, Pfeifer had retained Gaims. During the course of representing Pfeifer, Gaims had communications with Pellicano.

In addition to representing Pfeifer in his wrongful termination case against Z-Axis, Gaims acted as Pfeifer's counsel in a number of other matters. In October 2000, Gaims successfully represented Pfeifer in a domestic harassment injunction matter filed by Finn. Gaims also represented Pfeifer in a collection case filed against Finn. The case involved a claim that Finn had not repaid a $10,000 loan from Pfeifer. Finn filed a cross-complaint in the collection case, alleging Pfeifer had stalked and harassed her, and Gaims defended Pfeifer against Finn's claims. Gaims also represented Pfeifer in another action he filed against Finn in which he alleged invasion of privacy, fraud and intentional infliction of emotional distress (IIED).*fn3

In November 2001, Pfeifer and Finn executed a settlement agreement and mutual release of all claims that then existed or might exist between them.

In early 2006, a federal grand jury returned an indictment against Pellicano and Pfeifer and others on conspiracy and wiretapping charges. Eventually, Pfeifer agreed to plead guilty and to testify against Pellicano. In March 2008, Pfeifer testified against Pellicano at his criminal trial.

The Operative Complaints

Michael Gerbosi lived next door to Finn when the events summarized above transpired. On April 7, 2008, Gerbosi (represented by the Johnson & Johnson law firm) filed a civil complaint for damages against Pacific Bell Telephone Company, Pellicano, Pfeifer, and Gaims. (Super. Ct. L.A. County, No. BC388664.) Gerbosi's complaint alleges the following causes of action as to all defendants: unlawful wiretapping (Pen. Code, § 631); unlawful eavesdropping (Pen. Code, § 632); common law intrusion; invasion of privacy (Cal. Const., art. I, § 1); IIED; negligence; and, as to Pacific Bell and Gaims only, negligent supervision. The gist of Gerbosi's action is found in his allegations that he engaged in confidential communications with Finn in 2000 and 2001, and that Pfeifer, Pellicano, Pacific Bell, and Gaims, acting in furtherance of a common scheme, intercepted his confidential communications by unlawful wiretaps and unlawful eavesdropping. Gerbosi alleges he became aware of the wrongful interception of his confidential communications in the year prior to filing his complaint, the apparent implication being that he learned of the unlawful activity as a result of the criminal proceedings against Pellicano.

On April 9, 2008, Finn (represented by The Ball Law Firm LLP) filed a complaint against Pfeifer and Gaims. (Super. Ct. L.A. County, No. BC388812.) Finn's complaint alleges seven causes of action: invasion of privacy (Cal. Const., art. I, § 1); IIED; unlawful eavesdropping (Pen. Code, §§ 632, 637.2); unfair competition (UCL; Bus. & Prof. Code, § 17200); negligence; malicious prosecution; and abuse of process. The substance of Finn's action is embodied in her allegations that Pfeifer, Pellicano, and Gaims had "set out to destroy" Finn after she and Pfeifer separated, and that they conspired to use, and did use, illegal wiretaps and harassing lawsuits to accomplish their goal.

In May 2008, the trial court found Gerbosi's case and Finn's case to be related, and issued an order assigning the cases to a common trial judge for all purposes.*fn4

The Anti-SLAPP Motions

On September 11, 2008, Gaims filed a special motion to strike Finn's complaint under the anti-SLAPP statute. The motion, with its supporting declarations and exhibits occupies nearly 800 pages of Gaims's appendix on appeal. Gaims's motion argued that all of Finn's causes of action "arose from" the firm's acts in furtherance of its petitioning rights vis-A-vis representing Pfeifer during the course of the litigation that had transpired between Pfeifer and Finn in 2000 and 2001. Gaims argued that its petitioning activities in representing Pfeifer constituted "protected activities" within the meaning of the anti-SLAPP statute, and that Finn could not show a probability of prevailing on her claims for several reasons, including, among others, that Finn's causes of action were barred by the applicable statutes of limitations.

On September 22, 2008, Gaims filed an anti-SLAPP motion to strike Gerbosi's complaint. The motion, with its supporting declarations and exhibits occupies more than 300 pages of Gaims's appendix on appeal. The basic thrust of Gaims's anti-SLAPP motion to strike Gerbosi's complaint was that all of his causes of action, as did Finn's, arose from Gaims's activities as ...


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