Gerbosi v. Gaims, Weil, West & Epstein, LLP
193 Cal. App. 4th 435
| Cal. Ct. App. | 2011Background
- Gerbosi and Finn filed separate complaints alleging unlawful wiretap, eavesdropping, privacy, and related torts against Pellicano, Pfeifer, and Gaims.
- Gaims sought anti-SLAPP dismissal of Finn’s and Gerbosi’s complaints, arguing actions arose from petitioning/free-speech rights in Pfeifer’s litigation.
- Trial court denied both anti-SLAPP motions; later, court awarded Gerbosi and Finn roughly $220,000 in attorneys’ fees.
- The court consolidated related cases under one trial judge for all purposes in May 2008.
- The appellate court held: anti-SLAPP proper for Finn’s litigation-related claims only to the extent arising from Pfeifer’s representation; Gerbosi’s claims not within protected activity; fees remanded to apportion in favor of Gerbosi only.
- Finn’s litigation-related claims were time-barred by a November 2001 settlement ending the underlying litigation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Finn’s wiretap/privacy claims fall under anti-SLAPP protection | Finn argues some claims arise from protected petitioning activity. | Gaims contends all Finn claims arise from protected activity in Pfeifer’s litigation. | Finn’s wiretapping claims do not arise from protected activity; anti-SLAPP not applicable. |
| Whether Finn’s litigation-related claims are timely | Finn argues discovery rule or equitable estoppel tolling applies. | Gaims argues accrual ended with settlement; statute of limitations bars claims. | Finn’s litigation-related claims are time-barred; no applicable tolling salvages them. |
| Whether Gerbosi’s claims fall within the anti-SLAPP regime | Gerbosi asserts anti-SLAPP should strike, given alleged wiretapping linked to Pfeifer’s matters. | Gaims asserts all Gerbosi claims arise from Pfeifer’s petitioning activity. | Gerbosi’s claims do not arise from protected activity; anti-SLAPP does not apply. |
| Whether the trial court properly awarded and then should apportion attorneys’ fees | Gerbosi seeks fees incurred opposing anti-SLAPP; Finn seeks fees as prevailing party on partial merits. | Fees should be defeated or limited where anti-SLAPP motion had partial merit; apportionment needed. | Remand for apportionment of fees; Gerbosi may recover only fees incurred opposing Gaims’s anti-SLAPP motion. |
| Whether due process was violated in sanctions procedure | Gaims contends lack of notice on sanctions prior to ruling. | Court provided notice and opportunities; no due process violation. | No due process violation; notice and opportunity to be heard existed. |
Key Cases Cited
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (two-step anti-SLAPP framework; threshold and probability showings)
- Equilon Enterprises v. Consumer Cause, Inc., 29 Cal.4th 53 (Cal. 2002) (two-step analysis; probability of prevailing standard)
- City of Cotati v. Cashman, 29 Cal.4th 69 (Cal. 2002) (definition of protected activity under anti-SLAPP)
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (if protected activity is illegal as a matter of law, anti-SLAPP cannot apply)
- Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728 (Cal. 2003) (anti-SLAPP applies to malicious-prosecution-type claims)
- Ortega v. Pajaro Valley Unified School Dist., 64 Cal.App.4th 1023 (Cal. Ct. App. 1998) (equitable estoppel in statute-of-limitations context)
- Shively v. Bozanich, 31 Cal.4th 1230 (Cal. 2003) (discovery rule applicability and accrual concepts)
- Lafayette Morehouse, Inc. v. Chronicle Publishing Co., 39 Cal.App.4th 1379 (Cal. Ct. App. 1995) (fee-shifting and apportionment principles under sanctions)
- Brewster v. Southern Pacific Transportation Co., 235 Cal.App.3d 701 (Cal. Ct. App. 1991) (notice and opportunity to be heard in sanctions decisions)
- PrediWave Corp. v. Simpson Thacher & Bartlett LLP, 179 Cal.App.4th 1204 (Cal. Ct. App. 2009) (de novo review of anti-SLAPP order; two-step framework)