Wednesday,
November 14, 2018
Page 3
Court of Appeal:
Subpoenaing Irrelevant Matter Isn’t Abuse of Process
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
Lavin scoffed:
“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.”
Lavin responded:
“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.
‘No
Parallel’
Lavin commented:
“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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2018, Metropolitan News Company