C.A. Allows Suit Over Pellicano Wiretapping to Proceed

Thursday, March 10, 2011

By KENNETH OFGANG, Staff Writer

Two local residents who claim their telephone conversations were intercepted and illegally recorded by Anthony Pellicano can sue the lawyers who hired the former private investigator, this district's Court of Appeal ruled yesterday.

The alleged eavesdropping was not protected activity for purposes of the anti-SLAPP statute, Presiding Justice Tricia Bigelow wrote for Div. Eight, so Los Angeles Superior Court Judge Peter D. Lichtman correctly denied a motion to strike those causes of action.

The appellate panel reversed a portion of Lichtman's ruling, however, saying the anti-SLAPP motion should have been granted as to other claims and that an attorney fee award to the plaintiffs must be reconsidered as a result.

The plaintiffs in the action are Erin Finn, who allegedly ran an online prostitution service at one time, and Michael Gerbosi, who lived next door to Finn during the events that became the subject of two lawsuits. The related cases were assigned to Lichtman, along with a number of other cases arising from the activities of Pellicano, the onetime celebrity private investigator who was convicted of 76 counts of illegal wiretapping.

Pellicano is now serving his sentence at the federal prison in Safford, Ariz., and Bureau of Prisons records say he is currently scheduled for release in 2019. He reportedly was involved in a recent altercation with a corrections officer and is in solitary confinement.

Finn once dated Robert Pfeifer, an executive in the recording and video game industries who was a Pellicano client. Pfeiffer pled guilty to wiretap charges and testified against Pellicano at his 2008 trial.

Attorneys Sued

Soon after that testimony, Finn sued Pfeifer; his attorney Alan Jay Weil; and Weil's law firm Gaims, Weil, West & Epstein. The firm had previously Pfeifer in several matters involving Finn, including a defense of a harassment injunction, a $10,000 action against Finn based on an alleged unpaid loan—and Finn's cross-complaint alleging Pfeifer stalked her—and a suit in which Pfeifer accused Finn of invasion of privacy, fraud, and intentional infliction of emotional distress.

In her 2008 action, Finn claimed that Pellicano, Pfeifer, and the lawyers “set out to destroy” her after her relationship with Pfeifer ended, and conspired to use illegal wiretaps and harassing lawsuits to accomplish their goals.

Her causes of action included unlawful eavesdropping, invasion of privacy, unfair competition, negligence, malicious prosecution, and abuse of process.

Gerbosi alleged in his complaint, filed around the same time, that his phone conversations with Finn were illegally intercepted as part of a conspiracy among Pfeifer, Pellicano, Pacific Bell Telephone Company, and the lawyers.

In their anti-SLAPP motions, the lawyers argued that all of the causes of action against them arose from protected activity, specifically their representation of Pfeifer in the various earlier lawsuits.

Motions Denied

After allowing several months of discovery, Lichtman heard argument, and subsequently denied both motions. He also found that the motions were frivolous and awarded the plaintiffs more than $220,000 in attorney fees.

Bigelow, writing for the Court of Appeal, said that the trial judge was correct with respect to the wiretap-related causes of action.

As to Gerbosi, she said, the lawyers cannot claim the protection of the anti-SLAPP statute because he was a stranger to the litigation. The allegation that the lawyers unlawfully listened in on his phone conversations “are the beginning and end of the firm's anti-SLAPP motion,” Bigelow wrote.

“Finn's complaint stands in a different light,” the justice went on to write, because she was a party to litigation involving the law firm defendants, whose legitimate activities are protected by the statute. But to the extent Finn's claims for invasion of privacy, unlawful wiretapping, and unfair competition predicated upon violations of the Penal Code involve accusations of criminality on the firm's part, it cannot show its free speech or petition rights are being chilled, Bigelow explained.

The law firm's factual denials of Finn's allegations, the justice said, are irrelevant to whether it has met the protected-activity prong of anti-SLAPP analysis.

“The bottom line is this: section 425.16 was not enacted to protect an attorney who allegedly hired an ‘investigator' like Anthony Pellicano to wiretap telephones so as to get an unfair advantage in a client's legal matters,” Bigelow wrote. Since the law firm did not show that the claims arose from protected activity, she added, there is no burden-shifting under the statute and the plaintiff is not required to prove that she will likely prevail.

“[T]he record suggests that Gaims may well have winning defenses to Finn's causes of action alleging criminal activity,” the jurist said, “but those defenses must be established by a procedural tool other than the anti-SLAPP motion procedure.”

But Bigelow went on to conclude that the remainder of the complaint, which relates to the prior lawsuits between Pfeifer and Finn and not to wiretapping, implicates protected activity on the part of Pfeifer's lawyers.

Where the trial judge erred, Bigelow went on to say, was in concluding that Finn was likely to prevail on those claims. She cannot prevail, the presiding justice explained, because the complaint was filed more than six years after the causes of action accrued.

Unlike in her wiretap causes of action, Bigelow elaborated, Finn cannot plead equitable estoppel or delayed discovery. The argument that the delay should be excused “because Gaims's intimidation during the litigation in 2000 and 2001 caused her to live in ‘perpetual fear' that Gaims would ‘sue her again' some day” is untenable, the presiding justice concluded.

Turning to the award of attorney fees to the plaintiffs jointly, Bigelow said the judge acted within his discretion in concluding that it was frivolous for the defendants to claim constitutional protection for unlawful wiretapping activity. But in light of the panel's ruling that their litigation-related activities were protected, the amount of the fees must be considered anew, she said.

The case is Gerbosi v. Gaims, Weil, West & Epstein, LLP, 11 S.O.S. 1324.

Copyright 2011, Metropolitan News Company