Malin v. Singer
217 Cal. App. 4th 1283
Cal. Ct. App.2013Background
- Malin and Moore own The Dolce Group which includes Geisha House; Arazm, Malin, and Moore are general partners of Geisha House, LLC.
- Arazm consulted Singer regarding Malin and Moore’s alleged misappropriation; Singer sent a demand letter and a draft complaint on Arazm’s behalf that contained extortion-like threats.
- The demand letter referenced Malin's alleged embezzlement and threatened litigation and disclosure of personal information, including a judge, unless settled.
- Malin sued Singer and Arazm for civil extortion, civil rights violations, and emotional distress; related actions against others were filed in the same court.
- Arazm and Singer moved to strike under the anti-SLAPP statute; the trial court denied the motion at step one, applying Flatley and Gerbosi to find the conduct potentially unlawful.
- The appellate court reversed in part: the extortion claim falls under the Flatley exception only if extortion as a matter of law is shown; the court held the demand letter here does not meet that exception and is protected, but remanded to assess fees; other claims survived.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether extortion claim falls under Flatley exception | Malin argues the letter is criminal extortion under Flatley. | Arazm/Singer argue Flatley exception does not apply; letter not extortion as a matter of law. | Flatley exception does not apply; extortion claim not criminally extortion as matter of law. |
| Whether the extortion claim is barred by the litigation privilege | Extortion arises from communication protected by § 47(b). | Letter relates to contemplated litigation and should be privileged. | Litigation privilege bars extortion claim; under §47(b) the letter is privileged. |
| Whether wiretapping/computer hacking claims are subject to anti-SLAPP dismissal | Remaining civil rights and emotional distress claims depend on alleged illegal acts; discovery may be needed. | Gerbosi allows some wiretapping claims to escape dismissal; nonetheless the acts are criminal. | Wiretapping/computer hacking claims not subject to dismissal; not protected activity; not barred by anti-SLAPP. |
| Proper disposition of fees and costs on remand | Fees should be addressed after ruling on merits and motions. | Prevailing partial status warrants fee-shifting under §425.16(c). | Remand to determine fees/costs; partial prevailing defendants may recover fees; trial court to set amounts. |
Key Cases Cited
- Flatley v. Mauro, 39 Cal.4th 299 (Cal. 2006) (extortion as a matter of law for extreme prelitigation demands)
- Mendoza v. Hamzeh, 215 Cal.App.4th 799 (Cal. App. 2013) (extortion as a matter of law where threats to report crimes to authorities)
- Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106 (Cal. 1999) (communications in anticipation of litigation protected under 425.16)
- Digerati Holdings, LLC v. Young Money Entertainment, LLC, 194 Cal.App.4th 873 (Cal. App. 2011) (anti-SLAPP frame; governs threshold showing and lodestar considerations)
- Soukup v. Law Offices of Herbert Hafif, 39 Cal.4th 260 (Cal. 2006) (standard of review for anti-SLAPP appeals; de novo review)
- Gerbosi v. Gaims, Weil, West & Epstein, LLP, 193 Cal.App.4th 435 (Cal. App. 2011) (acts of alleged crime not protected by anti-SLAPP)
- Action Apartment Assn., Inc. v. City of Santa Monica, 41 Cal.4th 1232 (Cal. 2007) (broad interpretation of litigation privilege scope)
- Silberg v. Anderson, 50 Cal.3d 205 (Cal. 1990) (litigation privilege analysis framework)
- Ketchum v. Moses, 24 Cal.4th 1122 (Cal. 2001) (lodestar method and fee-shifting under anti-SLAPP)