Lead Opinion
Plaintiff Michael Flatley, a well-known entertainer, sued defendant D. Dean Mauro, an attorney, for civil extortion, intentional infliction of emotional distress and wrongful interference with economic advantage. Flatley’s action was based on a demand letter Mauro sent to Flatley on behalf of Tyna Marie Robertson, a woman who claimed that Flatley had raped her, and on subsequent telephone calls Mauro made to Flatley’s attorneys, demanding a seven-figure payment to settle Robertson’s claims. Mauro filed a motion to strike Flatley’s complaint under the anti-SLAPP statute.
We conclude that, consistent with the legislative intent underlying the anti-SLAPP statute as revealed by the statutory language, and consistent with our existing anti-SLAPP jurisprudence, a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff’s complaint. Applying this principle in the specific circumstances of the case before us, we agree with the Court of Appeal’s conclusion. Mauro’s communications constituted criminal extortion as a matter of law and, as such, were unprotected by constitutional guarantees of free speech or petition. Therefore, the antiSLAPP statute does not apply. Accordingly, we affirm the decision of the Court of Appeal.
I. FACTS AND PROCEDURAL HISTORY
Michael Flatley is a performer and dance impresario who owns “the stock of corporations that present live performances by Irish dance troupes throughout the world.” On March 4, 2003, Tyna Marie Robertson sued Flatley in Illinois for battery and intentional infliction of emotional distress based on allegations that Flatley had raped her in his hotel suite in Las Vegas on the night of October 19-20, 2002. Robertson was represented by D. Dean Mauro,
On March 6, 2003, Flatley filed his complaint in the present action in California against Mauro, Robertson and Doe defendants.
Mauro answered with a general denial and asserted various affirmative defenses including that Flatley’s claims were barred by section 425.16, the anti-SLAPP statute. On August 1, 2003, Mauro filed a motion to strike Flatley’s complaint under that statute.
Flatley’s opposition to the motion argued that Mauro’s communications constituted criminal extortion and were therefore not protected by the antiSLAPP statute. He argued further that he could demonstrate a probability of prevailing on the merits. In support of his opposition, Flatley filed several declarations, including his own and those of his personal secretary, Thomas Trautmann, and his attorneys, John Brandon, Bertram Fields, and Richard Cestero.
Flatley met Robertson in Las Vegas sometime before October 2002. Robertson was very friendly and Flatley gave her the telephone number of his personal secretary, Thomas Trautmann (Trautmann) in the event she wanted to reach Flatley.
In October 2002, Robertson called Trautmann to arrange a rendezvous with Flatley. On October 19, 2002, Robertson arrived at Flatley’s two-bedroom suite in the Venetian Hotel in Las Vegas. She was told that one room was for Flatley and the other was for Trautmann. Robertson put her belongings in Flatley’s bedroom. She did not request alternate accommodations or protest the accommodations offered.
That evening, Flatley and Robertson had dinner together. Upon returning to Flatley’s hotel room, Robertson excused herself to the bathroom. Flatley disrobed and got into bed. Robertson reappeared, nude, and entered Flatley’s bed, where she remained for the night. According to Flatley, everything that transpired between him and Robertson that night was consensual. At no time did Trautmann, who was in the next room with the door open, hear any cry or complaint of any kind.
The next morning, Robertson entered the common area of the suite, and kissed Flatley in Trautmann’s presence. Her demeanor was relaxed and happy. She ate breakfast with Flatley, speaking affectionately to him and cordially to Trautmann. Upon leaving, she kissed Flatley again and said she hoped to see him again.
On January 2, 2003, Mauro sent a letter addressed to Flatley that was received by Flatley’s attorney, John Brandon. The letter emphasized certain text, using various font sizes, boldface type, capital letters, underlining, and italics.
The letter was addressed: “DEAR FLATLEY, et. al.: [sic] [f] Please be advised that we represent a women [szc] with whom you engaged in forcible sexual assault on or about October 19-20, 2003 [sic: 2002]. Please consider this our first, and only, attempt to amicably resolve this claim against all Defendants named in the Complaint at Law enclosed herein.”
On the second page, a large caption announced “NOTICE OF CLAIM & ATTORNEY’S LIEN”. The letter continued: “Please consider this as Notice of our Attorneys’ [szc] Liens. We hereby make a claim and lien in the amount of 40% of the Total Recovery of all funds obtained through trial or settlement, plus all costs of suit, and attorney fees leveled against you.” After urging Flatley to contact his insurance carrier, the letter states “Tell them to contact me directly.” It warns that Flatley’s failure to do so will result in the filing of a lawsuit and that “all judgment proceeds” will be sought “directly from your personal assets.” The letter then states: “You are granted until January 30, 2002, [szc: 2003] to resolve this matter. The amounts claimed in the lawsuit are naturally negotiable prior to suit.” The letter warns, however, that if Flatley fails to meet the January 30 deadline “all offers to compromise, settle and amicably resolve this case will be automatically withdrawn.” The letter then goes on to “adviseQ” Flatley that Mauro has retained “several forensic expert witnesses” whose opinions “shall be disclosed in detail in the public filed court documents in this litigation.” Mauro also advises Flatley that he has “worked at Lloyd’s of London, and [is] familiar with International Law. These causes of action allow for PUNITIVE DAMAGES. Punitive Damages are non-dischargeable in bankruptcy, and are recognized under British Law. We can therefore execute and collect any award against MICHAEL FLATLEY personally in the U.S., or the U.K.” Next, Mauro refers to his expert “Economist Frank Maguire” who will testify “as to the amount of punitive damages which the law recognizes to justify ‘sending a message’ or what constitutes a ‘deterrent.’ ”
The first paragraph of the third page of Mauro’s letter refers Flatley to a “settlement of $100,000,000.00” awarded as punitive damages in an unidentified case. The second full paragraph then states that an investigation into Flatley’s assets for purposes of determining an appropriate award of punitive damages, will require “an in-depth investigation” and that any information would then “BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT, as it will be part of the bases of several of our expert’s [szc] testimony.” The third paragraph states in its entirety: “Any
At the top of the final page of the letter is the caption: “FIRST & FINAL TIME-LIMIT SETTLEMENT DEMAND.” Beneath it a paragraph warns that there shall be “no continuances nor any delays. If we do not hear from you, then we shall know you are not interested in amicably resolving this claim and we shall immediately file suit.” At the bottom of the page, beneath Mauro’s signature, a final paragraph warns Flatley that, along with the filing of suit, press releases will be disseminated to various media sources, including but not limited to “Fox News Chicago, Fox News Indiana, Fox News Wisconsin, and the U.S. National Fox News Network; WGN National U.S. Television; All Local Las Vegas Television, radio stations and newspapers; The Chicago Tribune, The Chicago Southern Economist, The News Sun, The Beacon News, The Daily Herald, The New York Times, The Washington Post; ALL National U.S. Television Networks of NBC, ABC and CBS; as well as INTERNET POSTINGS WORLDWIDE, including the BRITISH BROADCASTING COMPANY, and the Germany National News Network Stations.”
Attached to the letter were 51 pages of material, including a draft of Robertson’s complaint against Flatley, Robertson’s medical records pertaining to treatment for the alleged rape, certificates of achievement awarded to Mauro, newspaper articles chronicling Mauro’s multimillion-dollar cases and settlements, and the curricula vitae of Mauro’s experts.
Among the attachments was a letter Robertson wrote to the Las Vegas Police Department on November 17, 2002. The letter refers to a telephone call she had made to the police department on November 14 in which she reported the rape. She asked that the letter, which described the rape, be
The record does not show that Robertson provided any additional information to the police, or that the police took any action regarding her allegation. According to Flatley’s and Trautmann’s declarations, no one in the Las Vegas Police Department contacted either Flatley or his representatives about the allegation and Flatley remained unaware of the allegation until Brandon received Mauro’s letter.
Upon receipt of Mauro’s letter, Brandon immediately called Mauro. Mauro gave Brandon a deadline of January 30, 2003, “to offer sufficient payment.” On January 9, 2003, Mauro telephoned Brandon to complain that he had not heard from Flatley or Flatley’s representatives. Brandon explained that he was not handling the matter but offered to pass along any message. Mauro told him that he would not extend the January 30, 2003 deadline. He added: “I know the tour dates; I am not kidding about this; it will be publicized every place he [Flatley] goes for the rest of his life.” He added that dissemination of the story “would be immediate to any place where he [Flatley] and the troupes are performing everywhere in the world.”
On January 10, 2003, Mauro again called Brandon, who was in a meeting, and left a message with Brandon’s secretary. The message read: “Dean Mauro needs a call back in one-half hour, otherwise they are going public.” When Brandon returned Mauro’s call, Mauro “complained that people were investigating the matter before contacting him and were doing so in an intimidating manner. He said that if he did not receive a call by 8 p.m. Central Standard Time . . . , he would ‘go public and the January 30 deadline is gone.’ ” He said, “I already have the news media lined up” and would “hit him [Flatley] at every single place he tours.” Brandon read this back to Mauro to confirm its accuracy. When Brandon asked Mauro why he was concerned about Flatley’s attorneys investigating Robertson’s claim before making an offer, Mauro stated that this “case is like an insurance claim where the adjuster would call the lawyer to acknowledge the attorney’s lien.” Brandon asked Mauro if acknowledging the lien was a problem. Mauro said “never mind about that, just pass on the message.” Brandon conveyed the message to Bertram Fields, the attorney handling the matter for Flatley.
Fields reported Mauro’s conduct to the FBI and arranged for Flatley to give the FBI a voluntary interview without the presence of counsel. Hoping to allow the FBI more time to investigate, Fields wrote Mauro asking him to extend the deadline. Mauro extended the deadline by one day in a letter that complained that Fields had failed to return Mauro’s numerous messages. “You have my personal cell phone number, on 24 hours daily, and we still have received no substantive conversation of any kind for nearly a month.”
Flatley did not pay Robertson and Mauro.
Mauro’s reply to Flatley’s opposition to the motion to strike argued that his January 2, 2002 letter was a prelitigation settlement offer in furtherance of his constitutional right of petition and, therefore, protected by section 425.16, subdivision (e)(1) and (4). He argued further that Flatley had failed to demonstrate a probability of prevailing on any of his causes of action.
On September 22, 2003, the trial court denied Mauro’s motion to strike. It found that Mauro had not satisfied his initial burden to show that his communication was protected by section 425.16. Mauro appealed (§ 904.1, subd. (a)(13)), and the Court of Appeal affirmed, holding that, as a matter of law, Mauro’s communications constituted criminal extortion and therefore were not protected under section 425.16. The Court of Appeal did not address whether Flatley had demonstrated a probability of prevailing on the merits. We granted Mauro’s petition for review.
H. DISCUSSION
A. The Anti-SLAPP Statute Does Not Apply to Speech and Petitioning Activity That Is Illegal as a Matter of Law and, Therefore, Not Constitutionally Protected.
1. General Principles Regarding Section 425.16
The anti-SLAPP statute, section 425.16, allows a court to strike any cause of action that arises from the defendant’s exercise of his or her
Our concern for effectuating the legislative intent as demonstrated by the plain language of the statute has led us to reject attempts to read into section 425.16 requirements not explicitly contained in that language. (See, e.g., Jarrow Formulas, Inc. v. LaMarche, supra,
As noted, the purpose of section 425.16 is to prevent the chilling of “the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” by the “abuse of the judicial process.” (§ 425.16, subd. (a).) As a necessary corollary to this statement, because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by section 425.16. (See, e.g., Lam v. Ngo (2001)
2. Paul
In Paul, the plaintiff was a city council member seeking reelection. Following his defeat, he filed an action against several individuals, alleging that they “interfered with plaintiff’s candidacy by influencing the election with illegal campaign contributions for one of his opponents. Plaintiff alleged that defendants’ acts violated the Political Reform Act of 1974. (Gov. Code, § 81000 et seq. (the Political Reform Act).)” (Paul, supra,
The court held that to meet its burden “the defendant does not have to ‘establish its actions are constitutionally protected under the First Amendment as a matter of law. If this were so the second clause of subdivision (b) of section 425.16 would be superfluous because by definition the plaintiff could not prevail on its claim.’ [Citation.] Rather, the defendant must present a prima facie showing that the plaintiff’s causes of action arise from acts of the defendant taken to further the defendant’s rights of free speech or petition in connection with a public issue. [Citation.] Only if the defendant makes this prima facie showing does the trial court consider the second step of the section 425.16, subdivision (b)(1) analysis; at that point the burden shifts to the plaintiff to make a prima facie showing of facts which, if proven at trial, would support a judgment in the plaintiff’s favor.” (Paul, supra,
Applying the statutory procedure thus described to the case before it, the Paul court held that “we need not address the second step of section 425.16’s two-step motion to strike process because we hold, as a matter of law, that defendants cannot meet their burden on the first step. . . . [T]he activity of which plaintiff complains—defendants’ campaign money laundering—was not a valid activity undertaken by defendants in furtherance of their constitutional right of free speech. This conclusion is established by the factual record before us and is not really disputed by the defendants. Indeed, defendants argue that they are entitled to the benefit of section 425.16 in spite of such illegality.” (Paul, supra,
Paul acknowledged that the “making of a political campaign contribution is a type of political speech.” (Paul, supra,
In support of its conclusion, Paul cited Wilcox v. Superior Court (1994)
Paul emphasized the narrow circumstance in which a defendant’s assertedly protected activity could be found to be illegal as a matter of law and therefore not within the purview of section 425.16. “This case . . . involves a factual context in which defendants have effectively conceded the illegal nature of their election campaign finance activities for which they claim constitutional protection. Thus, there was no dispute on that point and we have concluded, as a matter of law, that such activities are not a valid exercise of constitutional rights as contemplated by section 425.16. However, had there been a factual dispute as to the legality of defendants’ actions, then we could not so easily have disposed of defendants’ motion.” (Paul, supra,
Paul’s interpretation of section 425.16 has been unanimously accepted in the Court of Appeal. (See, e.g., City of Los Angeles v. Animal Defense League (2006)
Paul also finds support in our decision in the companion case of Soukup v. Hafif, which examines section 425.18. Section 425.18 exempts from the anti-SLAPP statute “ ‘SLAPPback[s]’ . . . any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under section 425.16” (§ 425.18, subd. (b)(1))—if the underlying action was “illegal as a matter of law.” (§ 425.18, subd. (h).) By enacting section 425.18, the Legislature signaled its agreement with the interpretation of the scope of section 425.16 advanced by Paul. “In adding this proviso, the Legislature appears to have had in mind decisions by the Court of Appeal that have held that the anti-SLAPP statute is not available to a defendant who claims that the plaintiff’s cause of action arises from assertedly protected activity when that activity is illegal as a matter of law and, for that reason, not protected by the First Amendment. (See, e.g., Paul[, supra,]
We agree with Paul that section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition. A contrary rule would be inconsistent with the purpose of the anti-SLAPP statute as revealed by its language. (Paul, supra,
Citing Navellier v. Sletten (2002)
In Navellier, the plaintiffs sued the defendant in federal court alleging breach of fiduciary duty in connection with the defendant’s management of an investment company established by the plaintiffs. While the federal action was pending, the parties entered into an agreement that included a release of claims that the defendant signed. Subsequently, however, when the plaintiffs amended their complaint in the federal action, the defendant filed counterclaims. The plaintiffs obtained dismissal of two of the counterclaims based on the release. Ultimately, the federal action went to trial and resulted in a defense verdict. On appeal, the Ninth Circuit affirmed judgment for the defendant but also affirmed the dismissal of the defendant’s counterclaims on the grounds they were barred by the release of claims. (Navellier, supra, 29 Cal.4th at pp. 86-87.)
While the federal appeal was pending, the plaintiffs filed a state action “alleging that [the defendant] had committed fraud in misrepresenting his intention to be bound by the Release, so as to induce plaintiffs to incur various litigation costs in the federal action that they would not have incurred had they known [the defendant’s] true intentions. Plaintiffs also alleged that [the defendant] had committed breach of contract by filing counterclaims in the federal action.” (Navellier, supra,
The principal issue in Navellier was whether the plaintiffs’ causes of action for fraud and breach of contract arose from acts in furtherance of the defendant’s exercise of protected speech or petition rights. We concluded that
Only at the end of our analysis did we address the plaintiffs’ claim that “the anti-SLAPP statute does not apply to this action because any petitioning activity on which it was based was not ‘valid.’ ” (Navellier, supra,
Navellier did not consider whether or how the anti-SLAPP statute applies to a defendant whose assertedly protected activity is conclusively demonstrated to be illegal as a matter of law. Navellier was concerned with the threshold showing a defendant is required to make to come within the ambit of the anti-SLAPP statute where a dispute exists about whether the defendant’s exercise of his or her constitutionally protected rights was valid. While we cited Paul with approval for its holding that, ordinarily, any claimed illegitimacy of the defendant’s conduct must be resolved as part of a
“A decision, of course, does not stand for a proposition not considered by the court.” (Nolan v. City of Anaheim (2004)
We conclude, therefore, that where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff’s action arises from activity by the defendant in furtherance of the defendant’s exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff’s action. In reaching this conclusion, we emphasize that the question of whether the defendant’s underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law—either through defendant’s concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff’s second prong showing of probability of prevailing. With this understanding, we turn to Mauro’s claim that even conduct illegal as a matter of law is protected by the anti-SLAPP statute if it is protected by the litigation privilege. (Civ. Code, § 47, subd. (b).)
3. The Litigation Privilege and Section 425.16
Mauro argues: “All litigation-related speech, lawful or not, is in furtherance of petition or free speech rights.” Thus, he argues, even assuming his letter was extortion, it is nonetheless protected by Code of Civil Procedure
“The principal purpose of [Civil Code] section [47, subdivision (b)] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Silberg v. Anderson (1990)
To accomplish these objectives, the privilege is “an ‘absolute’ privilege, and it bars all tort causes of action except a claim of malicious prosecution.” (Hagberg v. California Federal Bank (2004)
There is, of course, a relationship between the litigation privilege and the anti-SLAPP statute. Past decisions of this court and the Court of Appeal have
For example, in Briggs v. Eden Council for Hope & Opportunity, supra,
The litigation privilege is also relevant to the second step in the antiSLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing. (See, e.g., Kashian v. Harriman (2002)
Notwithstanding this relationship between the litigation privilege and the anti-SLAPP statute, as we have observed, the two statutes are not substantively the same. In Jarrow Formulas, Inc. v. LaMarche, supra,
Nor do the two statutes serve the same purposes. The litigation privilege embodied in Civil Code section 47, subdivision (b) serves broad goals of guaranteeing access to the judicial process, promoting the zealous representation by counsel of their clients, and reinforcing the traditional function of the trial as the engine for the determination of truth. Applying the litigation privilege to some forms of unlawful litigation-related activity may advance those broad goals notwithstanding the “occasional unfair result” in an individual case. (Silberg v. Anderson, supra,
Section 425.16 is not concerned with securing for litigants freedom of access to the judicial process. The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial process (§ 425.16, subd. (a)), by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights. (§425.16, subd. (b)(1).) By necessary implication, the statute does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights. (Wilcox v. Superior Court, supra,
Conversely, Civil Code section 47 states a statutory privilege, not a constitutional protection. As we recognized in Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986)
By parity of reasoning, Civil Code section 47 does not operate as a limitation on the scope of the anti-SLAPP statute. The fact that Civil Code section 47 may limit the liability of a party that sends to an opposing party a letter proposing settlement of proposed litigation does not mean that the settlement letter is also a protected communication for purposes of section 425.16.
B. Mauro’s Assertedly Protected Conduct Was Criminal Extortion as a Matter of Law and Was Undeserving of the Protection of the Anti-SLAPP Statute.
1. Standard of Review
“Review of an order granting or denying a motion to strike under section 425.16 is de novo. (Sylmar Air Conditioning v. Pueblo Contracting Services,
2. Extortion
“Extortion is the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear . . . .” (Pen. Code, §518.) Fear, for purposes of extortion “may be induced by a threat, either: [][]... [][] 2. To accuse the individual threatened ... of any crime; or, [][] 3. To expose, or impute to him . . . any deformity, disgrace or crime[.]” (Pen. Code, § 519.) “Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.” (Pen. Code, § 523.)
Extortion has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal. “[I]n many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990)
Moreover, threats to do the acts that constitute extortion under Penal Code section 519 are extortionate whether or not the victim committed the crime or indiscretion upon which the threat is based and whether or not the person making the threat could have reported the victim to the authorities or arrested the victim. (People v. Sanders (1922)
Attorneys are not exempt from these principles in their professional conduct. Indeed, the Rules of Professional Conduct specifically prohibit attorneys from “threaten[ing] to present criminal, administration, or disciplinary charges to obtain an advantage in a civil dispute.” (Rules of Prof. Conduct, rule 5-100(A).)
In Libarian v. State Bar (1952)
3. Application
Extortion is not a constitutionally protected form of speech. (R.A.V. v. City of St. Paul (1992)
Preliminarily, we note that, in the proceedings below, Mauro did not deny that he sent the letter nor did he contest the version of the telephone calls set forth in Brandon’s and Field’s declarations in opposition to the motion to
At the core of Mauro’s letter are threats to publicly accuse Flatley of rape and to report and publicly accuse him of other unspecified violations of various laws unless he “settled” by paying a sum of money to Robertson of which Mauro would receive 40 percent. In his followup phone calls, Mauro named the price of his and Robertson’s silence as “seven figures” or, at minimum, $1 million. The key passage in Mauro’s letter is at page 3 where Flatley is warned that, unless he settles, “an in-depth investigation” will be conducted into his personal assets to determine punitive damages and this information will then “BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT ....[][] Any and all information, including Immigration, Social Security Issuances and Use, and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find.” This warning is repeated in the fifth paragraph: “[A]ll pertinent information and documentation, if in violation of any U.S. Federal, Immigration, I.R.S., S.S. Admin., U.S. State, Local, Commonwealth U.K., or International Laws, shall immediately [be] turned over to any and all appropriate authorities.” Finally, Flatley is warned that once the lawsuit is filed additional causes of action “shall arise” including “Defamatory comments, Civil Conspiracy, Reckless Supervision” which are “just the beginning” and that “ample evidence” exists “to prove each and every element for all these additional causes of action. Again, these actions allow for Punitive Damages.”
At the top of the final page of the letter is the caption: “FIRST & FINAL TIME-LIMIT SETTLEMENT DEMAND.” Beneath it a paragraph warns that there shall be “no continuances nor any delays.” At the bottom of the page, beneath Mauro’s signature, a final paragraph warns Flatley that, along with the filing of suit, press releases will be disseminated to numerous media sources and placed on the Internet.
In his first telephone conversation with Brandon, Mauro gave Flatley a deadline of the end of the month “to offer sufficient payment,” apparently without any further discussion of the particulars of Robertson’s claim. In his call to Brandon, one week after he sent the letter, Mauro complained that he had not yet heard from Flatley and told Brandon he would not extend the
Later that day, when Fields spoke to Mauro, Mauro told him “he knew how to play ‘hardball’ and that, if Mr. Flatley did not pay an acceptable amount, they would ‘go public,’ would see that their story would follow him wherever he or his groups performed and would ‘ruin’ him.” In response to Fields’s query about how much money Mauro wanted to avoid this, Mauro said “it would take ‘seven figures.’ ” He repeated that the deadline to respond was January 30.
Evaluating Mauro’s conduct, we conclude that the letter and subsequent phone calls constitute criminal extortion as a matter of law. These communications threatened to “accuse” Flatley of, or “impute to him,” “crime[s]” and “disgrace” (Pen. Code, § 519, subds. 2, 3) unless Flatley paid Mauro a minimum of $1 million of which Mauro was to receive 40 percent. That the threats were half-couched in legalese does not disguise their essential character as extortion. (Libarian v. State Bar, supra, 38 Cal.2d at pp. 329-330; State v. Harrington, supra,
Mauro’s letter accuses Flatley of rape and also imputes to him other, unspecified violations of various criminal offenses involving immigration and tax law as well as violations of the Social Security Act. With respect to these latter threats, Mauro’s letter goes on to threaten that “[w]e are positive the media worldwide will enjoy what they find.” Thus, contrary to Mauro’s claim that he did nothing more than suggest that, if evidence of other criminal conduct became public knowledge it would receive media attention, the letter implies that Mauro is already in possession of information regarding such criminal activity and is prepared to disclose this information to the “worldwide” media. Whether Flatley in fact committed any violations of these various laws is irrelevant. (People v. Goldstein, supra,
Mauro also threatened to accuse Flatley of raping Robertson unless he paid for her silence. Mauro argues that this threat cannot be the basis of a finding of extortion because Robertson had already reported the rape to the Las Vegas Police Department by the time the letter was sent. In the circumstances of this case, we reject his argument for the following reasons. We begin by examining the pleadings. (§ 425.16, subd. (b)(2).) Flatley’s complaint alleged that the purpose of Robertson’s telephone call to the Las Vegas Police Department was not to file an actual crime report but simply to “create a ‘sham’ record of a police report that would make her threats more ominous. . . . [S]he wanted to prevent the police from taking any action that might make the matter public, since any public report of police action would necessarily spoil Robertson’s scheme to extort a payment from [Flatley] to avoid such publicity.”
These allegations are supported by the declarations of Mauro and Trautmann that they were never contacted by the police in connection with the alleged rape before Mauro sent his letter to Flatley’s lawyers, and the absence of any evidence that the police ever took any action on the complaint. Moreover, Robertson’s letter to the Las Vegas Police Department and Maura’s statements to the media after he filed Robertson’s lawsuit—that she did not return to Las Vegas to pursue her complaint because she was too traumatized—support the conclusion that whatever complaint Robertson made to the Las Vegas police was insufficient to trigger a police investigation. Mauro’s declaration did not deny that he was aware that the Las Vegas police had not launched an investigation into Robertson’s allegations when he sent the letter to Flatley. Yet, the letter was careful to include the number of a police report made to the Las Vegas Police Department as if to hold a police investigation over Flatley’s head. Thus, as Flatley alleges, the incomplete police report appears to have existed only to make the threat of disclosure
Moreover, in addition to the threats to accuse Flatley publicly of rape and violations of other laws, Mauro also alleged that he had in his possession “ample evidence” to support claims against Flatley for defamation and civil conspiracy and that these were “just the beginning.” At minimum, these were threats that Flatley would be exposed to various kinds of opprobrium and he would be disgraced thereby unless he met Mauro’s demands. (Pen. Code, § 519, subd. 3 [threat “to impute” “disgrace” sufficient to establish extortion].)
Lastly, any doubt as to extortionate character of the letter is dispelled by the accounts from Brandon and Fields of Mauro’s telephone calls to them within a week of having sent the letter. In his very first conversation with Brandon, Mauro did not discuss the particulars of the claim or express an interest in negotiations but simply stated a deadline for Flatley “to offer sufficient payment.” In a followup phone call, he objected to Flatley’s investigation of Robertson’s allegation and threatened to withdraw the January 30 deadline, thus further demonstrating that it was never his intention to engage in settlement negotiations. Instead, the insistent theme of his conversations with Flatley’s lawyers is the immediate and extensive threat of exposure if Flatley failed to make a sufficient offer of money. This culminates in Mauro’s threat to “go public” and “ruin” Hatley if the January 30 deadline was not met. We conclude that Mauro’s conduct constituted criminal extortion as a matter of law in violation of Penal Code sections 518, 519 and 523.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
George, C. J., Kennard, J., Baxter, J., Chin, J., and Corrigan, J., concurred.
Notes
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ’’ (Jarrow Formulas, Inc. v. LaMarche (2003)
Flatley requests that we take judicial notice that Robertson voluntarily dismissed this action and that a subsequent action Robertson brought against Flatley was also dismissed. (Evid. Code, §§ 452, subd. (c), 459.) While it is true, as Mauro maintains, that these dismissals were not before the trial court when it ruled on his motion to strike, nonetheless the documents are proper subjects for judicial notice and help complete the context of this case. Therefore, we grant Hatley’s request. Both the Attorney General and Hatley have asked us to take judicial notice of portions of the legislative history of Code of Civil Procedure section 425.16. Flatley’s request is in support of his claim that the statute only protects the valid exercise of constitutionally protected speech and petition rights. The Attorney General’s request is in connection with his response to an argument made by Mauro that all litigation-related communication is protected under the statute, even if illegal. (See post, at pp. 320-325.) Mauro objects on the grounds that the statute speaks for itself and recourse to legislative history is unnecessary. While we have in the past made the same observation regarding the plain language of the statute, and we reach our conclusions in this case based on the statute’s plain language, we have nonetheless granted similar requests to take judicial notice of section 425.16’s legislative history in past cases. (See, e.g., Briggs v. Eden Council for Hope & Opportunity (1999)
Robertson is not a party to this appeal.
The only declaration Mauro submitted in support of his motion to strike Hatley’s complaint was his own. His declaration acknowledged that he had mailed the January 2, 2003 letter and attachments to Flatley described above. The balance of his declaration recounted having received letters from Fields seeking an extension of time to respond to that letter and
The letter is reproduced in its entirety as appendix A.
Mauro is no longer licensed to practice law in Illinois, having voluntarily retired in 2005, according to the Illinois State Bar Web site. He has no public record of discipline. (<http://www.iardc.org> [as of July 27, 2006].)
Section 425.18 does not apply in this case because Hatley’s action does not fit the definition of a SLAPPback in that it is not an action for malicious prosecution or abuse of process and because Robertson’s underlying action was not dismissed as a SLAPP.
Section 425.16, subdivision (e) provides as follows: “(e) As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public fomm in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”
Civil Code section 47, subdivision (b) states in relevant part: “A privileged publication or broadcast is one made: fid ... HD (b) In any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to Chapter 2 (commencing with Section 1084) of Title 1 of Part 3 of the Code of Civil Procedure . . . .”
Mauro argues that Paul is inapplicable to this case because Paul involved activity that falls within section 425.16, subdivision (e)(4)—“any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest”—rather than subdivision (e)(1)—“any written or oral statement or writing made before a ... judicial proceeding,” under which Mauro purports to seek the shelter of the anti-SLAPP statute. As Flatley points out, Mauro’s motion to strike was not based on subdivision (e)(2) but on an assertion that his “prelitigation communicative efforts to reach a settlement of his client’s claims ... are protected by section 425.16(e)(1) and (e)(4).” Mauro may not change his theory of the case for the first time on appeal. (Estate of Westerman (1968)
Flatley asserts that, even if Maura’s communications could be deemed prelitigation communication, prelitigation conduct does not fall within the ambit of section 425.16. We have concluded otherwise. (Briggs v. Eden Council for Hope & Opportunity, supra,
Mauro cites Blanchard v. DIRECTV (2004)
In popular parlance extortion is “sometimes called ‘blackmail.’ ” (People v. Sales (2004)
At all relevant times, Mauro was a member of the Illinois Bar. The comparable Illinois rule provides: “A lawyer shall not present, participate in presenting, or threaten to present criminal charges or professional disciplinary actions to gain an advantage in a civil matter.” (Ill. Rules Prof. Conduct, rule 1.2(e).)
We also observe that Mauro did not submit any declarations in support of his motion to strike that verified that a rape actually occurred.
We emphasize that our conclusion that Mauro’s communications constituted criminal extortion as a matter of law are based on the specific and extreme circumstances of this case. Extortion is the threat to accuse the victim of a crime or “expose, or impute to him . . . any deformity, disgrace or crime” (Pen. Code, § 519) accompanied by a demand for payment to prevent the accusation, exposure, or imputation from being made. Thus, our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian, supra,
Concurrence Opinion
I agree with the majority that defendant does not enjoy the protection of the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.)
The majority details plaintiffs evidentiary submissions opposing defendant’s anti-SLAPP motion. (Maj. opn., ante, at pp. 306-311.) These describe what the operative second amended complaint alleges: a “vicious and criminal scheme” by defendant and others “to extort money from plaintiff by asserting demonstrably false claims of sexual misconduct by plaintiff and threatening to publicize those false claims throughout the world, so as to ‘ruin’ plaintiff, if he would not pay the money . . . demanded.” Defendant, the complaint explicitly alleges, “participated in seeking to extort money from plaintiff by this malicious, oppressive, and criminal scheme” involving “threats to ruin him with widespread and continuing publication of . . . false claims of rape not only currently, but also whenever, in the future, he or his dance troupe would perform and . . . threats to bring about plaintiff’s criminal
Moreover, for many of the reasons the majority cites in concluding defendant’s conduct was illegal as a matter of law (maj. opn., ante, at pp. 325-332), plaintiff plainly has demonstrated a probability that he will prevail on the claim (§ 425.16, subd. (b)(1)), bearing in mind, as we repeatedly have noted, that in order to make that demonstration he need only “state[] and substantiate!] a legally sufficient claim.” (Briggs v. Eden Council for Hope & Opportunity (1999)
As the foregoing disposes of the matter before us, I decline to join the majority in creating a judicial exception to the first (i.e., “arising from”) prong of the anti-SLAPP statute for actions based on conduct courts determine was “illegal as a matter of law.” (See § 425.16, subd. (b)(1); maj. opn., ante, at pp. 311-325.) Although the Legislature has embraced the concept of “illegal as a matter of law” as a limit on motions to strike so-called SLAPPback actions for malicious prosecution and abuse of process (see § 425.18, subd. (h)), it has not done so with respect to other anti-SLAPP motions and I am doubtful that our doing so is necessary or appropriate.
We previously have observed that the anti-SLAPP statute “poses no obstacle to suits that possess minimal merit.” (Navellier v. Sletten (2002)
Although the majority is at pains to emphasize that the question which arises under its new first-prong exception, i.e., whether the defendant’s underlying conduct was illegal as a matter of law, “is prehminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing” (maj. opn., ante, at p. 320), I suspect maintaining any such distinction in practice will prove difficult. The majority asserts “the showing required to establish conduct illegal as a matter of law—either through defendant’s concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff’s second prong showing of probability of prevailing.” (Ibid.) The standard the majority articulates for its new exception, however, is virtually indistinguishable from the standard we previously have articulated for satisfying the statute’s second prong.
Michael Flatley, Individually, & As Officer of Unicom Entertainment, Inc Parasec, Inc.-Registered Agent 318 No. Carson St., Suite 208 Carson City, Nevada 89701
VIA FAX; 888-886-7168
***Thts communication is governed by all applicable common taw decisions of .the Stale of Illinois and Rule 408 of the U.S. Federal Rules of Evidence. All information contained herein is for settlement purposes only.***
RE: LAWSUIT AGAINST MICHAEL FLATLEY. INDIVIDUAI J.Y-AND UNICORN ENTERTAINMENT. INC.. AND THE VENETION RESORT-HOTEL-CASINO JOINT VENTURE GROUP
Our Client: JANE DOE (identity shall remain inadmissible, But the Official Police Report detailing this Incident is on file with The Las Vegas Police Department, under Report # 02-1114-1768
Date of Rape/Sex Assault: OCTOBER 19-20,2002
DEAR FLATLEY et. al.:
Please be advised that we represent a women with whom you engaged in forcible sexual assault on or about October 19-20,2003. Please consider this ourfirst, and only, attempt to amicably resolve this claim against all Defendants named in the Complaint at Law enclosed herein.
000086
Please consider this as Notice of our Attorneys’ Liens. We hereby make a claim and lien in the amount of 40% of the Total Recovery of all funds obtained through trial or settlement, plus all costs of suit, expert fees, and attorney fees leveled against you.
We suggest you immediately contact us. If you have insurance covering INTENTIONAL ACTS, then you should immediately contact all of your primary, excess and umbrella insurance carriers. They will be able to handle this for you.
Tell them to contact me directly. Your failure to do so shall result in us immediately filing a lawsuit against you and seeking all judgment proceeds directly from your personal assets. It is therefore in your best interests to contact us within the timeframe allotted, or all demands to settle shall be withdrawn.
You are granted until January 30,2Q02. to resolve this matter. The amounts claimed in the lawsuit are naturally negotiable prior to suit However, any and all'offers to compromise, settle and amicably resolve this case will be automatically withdrawn at the close of business at 6:00 n.m. on January 30.2003. Central Standard Time, for the U.S.
Please be further advised that we have retained several forensic expert witnesses who, in additional to our client’s treating medical personnel, have already completed thorough investigations and shall be testifying on our behalf. We attached their Biographical Information Sheets, Curriculum Vitae’s, and their opinions shall be disclosed in detail in the public filed court documents in this litigation.
You will note that I have worked at Lloyd’s of London, and am familiar with International Law. These causes, of action allow for PUNITIVE DAMAGES. Punitive Damages are non-dischargeable in bankruptcy, and are recognized under British Law. We can therefore execute and collect any award against MICHAEL FLATLEY personally in the U.S., or the U.K
Since Punitive Damages are to serve as a deterrent against future Reckless, Wilful & Wanton, and Intentional acts, Economist Frank Maguire, of Reed & Stratford of Milwaukee, Wisconsin, will testify as to the amount of punitive damages which the law recognizes to justify “sending a message” or what constitutes a “deterrent”.
2
000087
To do so, an in-depth investigation into MICHAEL FLATLEY’Spersonal assets, business agreements, royalties, future engagements and financial compensation worldwide shall be undertaken. ALL OF THIS INFORMATION SHALL BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT, as it will be part of the bases of several of our expert’s testimony.
Any and all information, including Immigration, Social Security Issuances and Use¡ and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find. .
Our Forensic Criminologist, Dr. John Lombardi, along with our expert Human Resource Consultant, Dr. David K. Hirshey, conclude that all Defendants failed to' adequately provide requisite safeguards for our client, and that there existed reason to know, prior to this assault, of a propensity and likelihood of such criminal behavior. As such,' each Defendant named in the attached Complaint at Law shall be sued for compensatory and punitive damages, along with any other agents, owners or representatives of same, which shall be discovered through the course of the litigation.
Once again, please remember all pertinent information and documentation, if in violation of any U.S. Federal, Immigration, I.R.S, S.S. Admin., U.S. State, Local, Commonwealth U.K., or International Laws, shall immediately turned over to any and all appropriate authorities.
Once suit is filed, we anticipate that other causes of action shall arise. Defamatory comments, Civil Conspiracy, Reckless Supervision are just the beginning, and we already have ample evidence to prove each and every element for all these additional causes of action. Again, these actions allow for Punitive Damages.
3
000088
We look forward to a prompt and timely response. There shall be no continuances nor any delays. If we do not hear from you, then we shall know you are not interested in amicably resolving this claim and we shall immediately file suit.
Kindly direct all future communications, corresponded and calls to my attention.
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Í : A Professional Law Corporation
!*■ DDM/sg
Enc.
i'-; Co: MARC MARTIN; JANE DOE
1 ’This communication is governed by alt applicable common law decisions of the State of Illinois and Rule 408 of the U.S. Federal Rules of Evidence. All information contained herein is for settlement purposes only.***
; :■ P.S. Note: along with filing suit, there shall be PRESS RELEASES Disseminated to. but not limited to. the following
■ ■ MEDIA SOURCES: Fox News Chicago, Fox News Indiana, Fox News ; Wisconsin, and the U.S. National Fox News Network; WGN National U.S. Television; A1I Local Las Vegas Television, radio stations and newspapers; The Chicago.Tribune, The Chicago Southern Economist, The News Sun, The Beacon . News, The Daily Herald, The New York Times, The Washington Post; ALL . National U.S. Television Networks of NBC, ABC and CBS; as well as INTERNET - POSTINGS WORLDWIDE, including the BRITISH BROADCASTING COMPANY, and the Germany National News Network Stations.
4
000089
Unlabeled section references are to the Code of Civil Procedure.
Similarly, since many torts are crimes and vice versa, I am not confident that, in branding this tort defendant’s conduct “criminal extortion as a matter of law” (maj. opn., ante, at p. 332, fn. 16), the majority has invoked a principle easily “limited to the specific facts of this case” (id. at p. 333).
The majority, citing section 425.16, subdivision (b)(2), articulates this standard for deciding whether a plaintiff qualifies for its new first-prong exception: “ ‘We consider “the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.” . . . However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ ” (Maj. opn., ante, at p. 326.) In Wilson v. Parker, Covert & Chidester, supra,
Nor is it clear what the consequences for the parties, going forward, are likely to be of our declaring at this early stage of the litigation that defendant’s conduct constitutes extortion as a matter of law. (See maj. opn., ante, at p. 332.) The majority does not address the point.
The majority relies principally on Paul for Council v. Hanyecz (2001)