Wednesday, November 14, 2018
Court of Appeal:
Says Litigation Privilege Required Partial Granting of Anti-SLAPP Motion
By a MetNews Staff Writer
The Court of Appeal for this district has rejected the contention by a lawyer that portions of his cross-complaint against Allstate Insurance and others was improperly stricken in response to an anti-SLAPP motion because the court erred in supposing that misuse of subpoenas to gather useless information was protected by the litigation privilege.
The opinion, which was not certified for publication, was filed Friday. Authored by Acting Presiding Justice Luis Lavin of Div. Three, it affirms an order by Los Angeles Superior Court Judge Barbara M. Scheper.
Studio City attorney Dennis Gerald Geselowitz brought his cross complaint after being sued in connection with an alleged insurance fraud scheme. He contended that the cross-defendants improperly subpoenaed his depositions in unrelated personal injury cases for “an improper purpose, namely prying into Cross-Complainant’s office procedures, in order later to exploit and misstate those procedures and parlay them into an appearance of impropriety, when those were unrelated to the lawsuits in which the process was used.”
The two causes of action dismissed by Scheper were one for abuse of process and another for violation of the Unfair Competition Law (”UCL”).
The lawyer acknowledged that the first prong of the anti-SLAPP statute—that the conduct complained of be of a protected nature—was satisfied because it sprung from a judicial proceeding. He argued, however, that Scheper erred in concluding that he did not have a probability of prevailing on the merit because the litigation privilege shielded the cross-defendants.
Lavin Assails Contention
“Geselowitz apparently believes, though he cites no supporting authority, that only litigation activities yielding relevant information are protected by the litigation privilege. In essence, Geselowitz invites us to conclude that any time counsel serves a discovery request later determined to be overbroad or irrelevant by a trial court, counsel would potentially be subject to tort liability for abuse of process—a rule that would substantially frustrate the purpose of the litigation privilege.”
He said the appellant was putting forth a “breathtaking proposition.”
Two Cases Cited
Geselowitz pointed to two Court of Appeal decisions: Rothman v. Jackson decided in 1996 and Argentieri v. Zuckerberg, handed down last year.
In Argentieri, the First District’s Div. Five held that statements to the press about a case made by lawyer for Facebook were not protected by the litigation privilege. Geselowitz quoted the case as saying that the litigation privilege does not insulate statements that do not further the objects of the litigation.”
“Although that is an accurate quotation from the case, it does not support Geselowitz’s argument because the conduct at issue here—attempting to use subpoenas to obtain information in the course of ongoing litigation—was plainly part of the litigation process, as opposed to a public statement made in relation to litigation but that was not part of the litigation process itself.”
In Rothman, Div. Three of this district’s Court of Appeal held that the privilege did not attach to allegation entertainer Michael Jackson (since deceased) made against the lawyer representing a child who was suing him.
“Aside from quoting a few phrases of marginal relevance from Argentieri and Rothman, Geselowitz offers no further analysis of these cases. And we see no obvious parallel between the conduct at issue in Rothman and Argentieri—statements made to the press about pending or ongoing litigation—and the conduct at issue here.”
The cause of action for abuse of process is barred, he said, and along with it, the reliant cause of action under the UCL.
The case is Geselowitz v. Allstate Insurance Co., B278637.
Marc R. Greenberg of Tucker Ellis and Douglas G. Benedon and Kelly R. Horowitz of Benedon & Serlin represented Geselowitz and Thomas E. Fraysse, Gregory D. Pike and Maisie C. Sokolove of Knox Ricksen acted for Allstate and others.
In the action on the complaint, it is contended that Geselowitz spends only a few hours a week at his law office, that non-attorneys do the work, have made demands against insurance companies for millions of dollars, and the claims include fraudulent ones. Public State Bar disciplinary proceedings have not been instituted based on the allegations.
The lawyer was suspended from practice for 90 days in 2016 based on dipping into the Client Security Fund.
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