C.A. 2nd
B219587

The Second Appellate District affirmed in part and reversed in part trial court orders and remanded. The court held that an attorney’s protected petitioning activities under the anti-SLAPP statute does not include either criminal activity or activity which adversely impacts a person with no connection to the underlying litigation.

A romantic relationship between Robert Pfeifer and Erin Finn ended. Feifer filed several civil complaints against Finn. Pfeifer was represented by law firm Gaims, Weil, West & Epstein, LLP (Gaims). Gaims retained a private investigator who, in turn, conducted illegal wiretaps of Finn’s telephone conversations.

Finn sued Gaims and others for invasion of privacy, intentional infliction of emotional distress, unlawful eavesdropping, unfair competition, negligence, malicious prosecution, and abuse of process.

Michael Gerbosi lived next door to Finn. His sole connection to these events was that he had been engaged in some conversations with Finn during the period of time when her phone lines were being tapped. Upon discovering the wiretaps, Gerbosi also sued Gaims and others, alleging causes of action for unlawful wiretapping, unlawful eavesdropping, common law intrusion, invasion of privacy, intentional infliction of emotional distress, negligence, and negligent supervision.

Gaims filed motions to strike both Finn’s and Gerbosi’s complaints under the anti-SLAPP statute. Gaims argued that both complaints arose from Gaims’s protected activities as Pfeifer’s lawyers in the course of the litigation between Pfeifer and Finn. The trial court disagreed, denied the motions to strike, and awarded attorney’s fees and costs to both Finn and Gerbosi.

The court of appeal affirmed in part and reversed in part, holding that the trial court properly denied the motions to strike as to Gerbosi’s complaint and portions of Finn’s complaint only.

The court explained that Gaims’s status as counsel for Pfeifer did not insulate it from liability to persons who were total strangers to the underlying litigation. A lawyer may not necessarily employ the anti-SLAPP statute to strike a cause of action merely because he or she is a lawyer.

Further, the anti-SLAPP statute provides no shield for conduct which is criminal as a matter of law. Conduct that is illegal as a matter of law is not protected by constitutional guarantees of free speech and petition and thus enjoys no protection under the anti-SLAPP statute. In contrast, where a defendant’s assertedly protected activity may or may not be criminal, the defendant may invoke the anti-SLAPP statute.

Here, Gerbosi had no connection to the underlying litigation between Pfeifer and Finn and thus no connection to Gaims’s representation of Pfeifer. Accordingly, the wiretapping and privacy invasions alleged by Gerbosi did not “arise from” any protected activity by Gaims on behalf of Gerbosi. Gaims’s alleged criminal conduct was thus not entitled to protection under the anti-SLAPP statute. The trial court properly denied Gaims’s anti-SLAPP motion to strike Gerbosi’s complaint.

Further, the trial court was within its discretion in determining that no reasonable attorney would have believed there was merit to the attempt to strike Gerbosi’s complaint. There was thus no error in the award of fees and costs to Gerbosi.

Turning to Finn’s complaint, the court found that to the extent that Finn’s eavesdropping and privacy-related causes of action arose from unlawful wiretaps, the underlying activity was criminal as a matter of law and thus was not entitled to protection under the anti-SLAPP statute.

This left Finn’s causes of action for intentional infliction of emotional distress, negligence, malicious prosecution, and abuse of process, all of which arose from Gaims’s representation of Pfeifer in the underlying litigation against Finn. Because these causes of action did not allege conduct that was criminal as a matter of law, the anti-SLAPP statute applied.

Accordingly, what remained to be determined was whether Finn had a probability of prevailing as to these latter causes of action. The court found she did not. The insurmountable obstacle as to each of these causes of action was the statute of limitations. The underlying conduct occurred ended in 2001, the litigation with Pfeifer ended the same year, and Finn did not file suit until 2008. Finn’s litigation-related causes of action were thus time-barred, and neither delayed discovery nor equitable estoppel compelled a different outcome.

Because there was partial merit to Gaims’s motion to strike Finn’s complaint, Finn was not entitled to an award of fees and costs.

The court remanded to the trial court to recalculate the amount of fees and costs recoverable by Gerbosi alone.