Gerbosi v. Gaims: the Worst Decision Under the Anti-SLAPP Law?

In any body of case law as large as that applying California’s anti-SLAPP statute (approximately 400 published opinions so far and counting), you will find some outliers and oddities. One case, however, stands out above all the rest.  That decision, Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, has not only affected the coherence of the case law under the statute, but has also materially limited the extent to which the statute protects those who have been sued for exercising their First Amendment rights.

Before Gerbosi, the analysis under the anti-SLAPP statute was simple, and in theory, it remains so.  Where a cause of action in a lawsuit is based upon protected First Amendment petition or speech activity as defined in four subcategories, the statute applies to that cause.  This then puts the burden on the plaintiff bringing suit based upon such protected activity to show, through admissible evidence, a probability of prevailing on that cause of action.  If the plaintiff makes this showing, the cause of action is allowed to proceed; if not, then the cause is dismissed with costs and fees to the defendant.  This procedural mechanism (the anti-SLAPP motion or “special motion to strike”) protects innocent defendants by dismissing at an early stage meritless lawsuits brought solely to chill their First Amendment rights; however, it also allows plaintiffs with meritorious suits to overcome the motion by making only relatively minimal showing of merit in support of their claims.

Gerbosi has upset this straightforward analysis, and thereby undermined the protections the statute was designed to put in place.  In response to an anti-SLAPP motion, SLAPP filers may now claim, citing Gerbosi, that the statute does not apply simply because their cause of action alleges illegal conduct undeserving of First Amendment protection.  This is a nonsensical proposition at odds with the statutory scheme and the vast majority of the case law under the statute.  Every complaint alleges illegal conduct; otherwise, there would be no basis for the lawsuit.  Nevertheless, this was the reasoning of the court in Gerbosi.

A discussion of the facts of Gerbosi is helpful here, if only to prove the adage that bad facts make bad law.  The case involved underlying lawsuits between record executive Robert Pfeifer and an ex-girlfriend, Erin Finn.  During the course of this litigation, Pfeifer and his attorneys (Gaims, Weil, West & Epstein, LLP) allegedly hired the infamous private investigator Anthony Pellicano – against whom criminal charges were pending at the time – to dig up dirt on Finn and another party, Michael Gerbosi, in order to discredit them in the litigation.  After the litigation concluded by means of a global settlement, however, Gerbosi and Finn filed new complaints alleging that Pellicano, at the direction of Pfeifer and his attorneys, engaged in illegal wiretapping and eavesdropping, which are criminal offenses under California law.

Faced with these facts, it is tempting to think the appellate court was trying to find any reason it could to deny the infamous Pellicano the protections of the anti-SLAPP law.  (It is also telling that the court complains at length in its opinion about the size of the record in the case, perhaps indicating the justices did not wish to engage in the often complex task of determining whether the plaintiff could show a probability of prevailing, where faced with such a voluminous record.)

Regardless, on these facts, the Gerbosi court ruled that the anti-SLAPP statute did not apply.  The court found that, despite what the case law (including Supreme Court precedent) might say, the statute simply could not apply to alleged illegal activity like wiretapping because “the assertedly protected activity [in that case] must be said to be wiretapping in the course of representing a client.  Under no factual scenario offered by [defendant] is such wiretapping activity protected by the constitutional guarantees of free speech and petition.”

This is a bizarre conclusion.  Of course illegal wiretapping activity is not protected by constitutional guarantees.  However, the mere fact that the plaintiff alleges the activity was illegal does not strip it of anti-SLAPP protections; if that were the case, no defendant could ever make use of the statute.  What the plaintiff alleges was illegal wiretapping could well have been perfectly legal fact-gathering regarding a litigation adversary, or it might be an entirely fabricated sham allegation, without any factual basis, in which case the complaint was still based, if anything, upon the conduct of a litigation adversary in a lawsuit and thus still deserving of anti-SLAPP protection.  It is not the defendant’s burden to prove, conclusively, at the early stage of an anti-SLAPP motion that the alleged activity enjoys a constitutional defense – if that were the case, an anti-SLAPP motion would fail to provide a mechanism for the early dismissal of meritless suits, as intended.  Thus, Gerbosi seems to undermine the entire statutory scheme of the anti-SLAPP law.

Defenders of Gerbosi might argue in response that what the case actually does is carve out an exception to anti-SLAPP protection for alleged criminal activity, as opposed to activity that is merely illegal.  However, the Supreme Court has made no such distinction when faced with similar allegations.  In Flatley v. Mauro (2006) 39 Cal.4th 299, the Court held that the anti-SLAPP law would normally apply to a claim of extortion – a criminal offense – where the claim is made on the basis of a pre-litigation demand letter.  (Although in that case, the Court held the anti-SLAPP law did not apply because the letter was indisputably extortionate, as a matter of law.)  If a broad exception to anti-SLAPP protection for alleged criminal activity existed, the Supreme Court’s decision in Flatley would make no sense.  Indeed, this would also provide an avenue for crafty SLAPP filers to avoid the protections of the statute by limiting their allegations to only criminal offenses – which, again, would undermine the purposes of the anti-SLAPP law.

Ultimately, Gerbosi cannot be squared with either the statutory language of, or the cases interpreting, the statute.  Nevertheless, the case remains out there, a virtual landmine for defendants unlucky enough to face a judge who simply does not feel like applying the anti-SLAPP law to a particular case.