88 Cal.App.5th 1005
Cal. Ct. App.2023Background
- In 2015 Abelyan paid the Geragos firm $27,500 (plus $2,500 consult) under a flat-fee retainer for investigation/services; the firm did not appear at his trial, he proceeded with appointed counsel, and was later convicted on retrial.
- Abelyan sued the Geragos parties in 2019 for breach of contract, promissory fraud, and UCL claims seeking recovery of the retainer.
- Geragos filed a cross-complaint (Aug. 2020) against Abelyan and his new lawyer Tiomkin alleging civil extortion, conspiracy, negligence, IIED, and UCL violations — claiming threats to file State Bar complaints unless $27,500 were returned.
- Abelyan and Tiomkin moved to strike the cross-complaint under the anti‑SLAPP statute (§ 425.16), arguing the communications were litigation/settlement-related and protected and, alternatively, barred by the litigation privilege; they sought fees.
- The trial court excluded a secret recording under Penal Code § 632, granted the anti‑SLAPP motions, applied the litigation privilege, and awarded fees; the Geragos parties appealed.
- The Court of Appeal affirmed: the disputed emails and settlement/settlement‑related calls arose from protected petitioning activity; Flatley’s narrow extortion exception did not apply as a matter of law; the litigation privilege barred the cross‑claims; exclusion of the recording was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the cross‑claims arise from protected petitioning activity (anti‑SLAPP prong 1) | Geragos: communications were extortionate and therefore unprotected (Flatley exception). | Abelyan/Tiomkin: emails and settlement calls are litigation/settlement communications protected by § 425.16. | Held: communications arise from protected activity; Flatley exception not shown as a matter of law. |
| Whether the Flatley extortion exception applies (i.e., communications are criminal extortion and unprotected) | Geragos: emails/calls and a recorded settlement proposal show threats to file State Bar complaints for money, establishing extortion. | Abelyan/Tiomkin: evidence is disputed; communications related to alleged misappropriation, not the extreme threats in Flatley. | Held: Flatley exception limited to specific extreme, uncontroverted facts; here evidence conflicts and does not establish extortion as a matter of law. |
| Admissibility of the secretly recorded call (used to prove extortion) | Geragos: recording proves Tiomkin’s extortion and is admissible (or falls under exceptions). | Abelyan/Tiomkin: recording was made without consent of all parties and is inadmissible under Penal Code § 632; § 633.5 doesn’t make it admissible in civil suits. | Held: trial court did not abuse discretion excluding the recording as unlawfully made and inadmissible. |
| Whether the cross‑claims survive anti‑SLAPP prong 2 given the litigation privilege | Geragos: privilege does not apply to extortion/unlawful threats and Kazarian was a non‑party so privilege shouldn't shield communications. | Abelyan/Tiomkin: litigation privilege (Civ. Code § 47) is absolute for communications related to litigation and bars the claims. | Held: litigation privilege applies to these prelitigation/litigation‑related communications; Geragos failed to show probability of prevailing; anti‑SLAPP granted; fee award affirmed. |
Key Cases Cited
- Flatley v. Mauro, 39 Cal.4th 299 (2006) (Supreme Court: threats to accuse/report unless paid can constitute extortion and fall outside anti‑SLAPP protection in extreme, uncontroverted circumstances)
- Baral v. Schnitt, 1 Cal.5th 376 (2016) (articulates anti‑SLAPP two‑prong framework and statutory purpose)
- Rusheen v. Cohen, 37 Cal.4th 1048 (2006) (defines when a claim "arises from" protected petitioning activity)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (2006) (evidentiary standard on anti‑SLAPP: accept opposing evidence as true for first prong)
- Malin v. Singer, 217 Cal.App.4th 1283 (2013) (demand letter in anticipation of litigation protected; Flatley exception narrowly applied)
- Flickinger v. Finwall, 85 Cal.App.5th 822 (2022) (Flatley permits finding extortion as a matter of law only where threats fall wholly outside professional norms)
- Cabral v. Martins, 177 Cal.App.4th 471 (2009) (attorney communications in anticipation of or during litigation are per se protected activity)