85 Cal.App.5th 822
Cal. Ct. App.2022Background:
- Plaintiff Flickinger hired contractor Robert Pendergrast to remodel his home; a dispute arose over whether permits were obtained for a kitchen remodel.
- Flickinger admitted (to Pendergrast) using large amounts of unreported cash from alleged Apple vendor kickbacks; Pendergrast later stopped work and threatened to expose compromising information.
- Flickinger sued Pendergrast (Flickinger I) for breach of contract; Pendergrast defended partly by alleging Flickinger instructed him not to obtain permits because of illicit cash payments.
- After Flickinger’s counsel made a prelitigation $125,000 demand, Pendergrast’s lawyer Finwall sent a December 2016 letter rejecting the demand and noting litigation could prompt Apple to investigate Flickinger’s vendor relationships.
- Flickinger sued Finwall in a second action (Flickinger II) for civil extortion and Ralph Act violations based on that letter; the trial court denied Finwall’s anti‑SLAPP motion, finding the letter was extortion per Flatley.
- The Court of Appeal reversed: Finwall’s letter was protected petitioning activity (Flatley exception did not apply), Flickinger failed to show a probability of prevailing (litigation privilege bars the extortion claim), and the matter was remanded to grant the anti‑SLAPP motion and determine fees.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dec. 2016 prelitigation letter is extortion (Flatley exception) and thus unprotected by anti‑SLAPP | The Apple‑investigation remark was a textbook threat to expose criminal conduct and therefore extortion as a matter of law under Flatley | The letter was a routine prelitigation communication reasonably connected to disputed permit issues and within professional norms | Flatley exception does not apply; letter is protected petitioning activity under §425.16 |
| Whether plaintiff can show a probability of prevailing on civil extortion claim (anti‑SLAPP second prong) | Extortion claim valid based on implied threats in the letter | Litigation privilege bars the extortion claim and defeats any probability of success | Litigation privilege applies; plaintiff cannot demonstrate probability of prevailing; extortion claim fails |
| Validity of Ralph Act cause of action against Finwall | Ralph Act claim alleges threats, intimidation, coercion preventing litigation | Defendants argue the claim lacks merit; issues not defended on appeal | Plaintiff forfeited defense on appeal; trial court must dismiss the Ralph Act claim on remand |
| Entitlement to attorney fees under §425.16(c)(1) | (No appellee defense preserved) | Prevailing defendant entitled to fees, including on appeal; amount to be determined by trial court | Finwall entitled to fees as prevailing defendant; remand to quantify fees and costs |
Key Cases Cited
- Flatley v. Mauro, 39 Cal.4th 299 (2006) (attorney threats may be unprotected extortion only in narrow, extreme circumstances where illegality is conceded or conclusively shown)
- Malin v. Singer, 217 Cal.App.4th 1283 (2013) (prelitigation threats tied to the complaint and reasonably connected to dispute may remain protected)
- Digerati Holdings, LLC v. Young Money Entertainment, LLC, 194 Cal.App.4th 873 (2011) (litigation privilege broadly bars derivative tort claims based on communications related to contemplated litigation)
- Neville v. Chudacoff, 160 Cal.App.4th 1255 (2008) (prelitigation communications are protected if they concern the dispute and anticipate litigation in good faith)