MARK GERAGOS et al., Cross-complainants and Appellants, v. ARMEN ABELYAN et al., Cross-defendants and Respondents.
B310636
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT
Filed 2/28/23
CERTIFIED FOR PUBLICATION; (Los Angeles County Super. Ct. No. 19STCV40558)
Dhillon Law Group, Krista L. Baughman and Harmeet K. Dhillon for Cross-complainants and Appellants.
Affeld Grivakes, Damion D. D. Robinson; Law Offices of Elliott N. Tiomkin and Elliott N. Tiomkin for Cross-defendants and Respondents.
INTRODUCTION
With new counsel, a client sues his former attorneys, alleging they accepted $27,500 in fees from him but did not perform the promised legal services. New counsel engages in communications via email and telephone with the former attorneys’ representative and discusses the possible filing of a State Bar claim. The former attorneys file a cross-complaint against the client and his new counsel for extortion, among other claims. The client and his new counsel file an anti-SLAPP motion, which the trial court grants.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Events Leading to Filing of Civil Complaint
From 2007 to 2011, Armen Abelyan (Abelyan) was a revenue agent with the IRS. In September 2011, he began training as a special agent. Prior to receiving his formal commission as a special agent, Abelyan received a traffic
In 2014, Abelyan was charged with perjury and attempted impersonation of a public officer in Los Angeles Superior Court case No. BA430254-01, People v. Abelyan. The prosecution argued Abelyan “lied about being a Special Agent and falsely impersonated a public officer in trying to get out of the ticket.” Initially, Abelyan represented himself in the case, but realized he needed a lawyer for trial.
On November 19, 2015, Abelyan paid $2,500 for a consultation with Setara Qassim (Qassim) and Mark Geragos (Geragos) of the firm Geragos & Geragos (Geragos Firm). The consult lasted less than 15 minutes. They “agreed to take [the] case and requested an additional $25,000.” That same day, Abelyan paid and signed a retainer agreement, which included the following relevant provisions: “This letter will serve as confirmation that the [Geragos Firm] will represent you related to the matter pending against you in Clara Shortridge Foltz Criminal Justice Center, Department 114.” “You retain and employ our firm to represent you in the matter referenced above. Our firm shall charge you a flat fee of $25,000.00 for investigation only. If you wish that our firm be substituted in as counsel of record, a new retainer agreement will need to be negotiated.” “Said FEE is a FLAT FEE which covers not only the legal services to be rendered but also secures the FIRM‘S representation and reputation to assist you with this matter. A FLAT FEE is not based upon actual time spent on the case or the number of hours billed, but covers services that might be greater or lesser than the average for this type of case.” (Boldface omitted.) Geragos and Qassim assured Abelyan he “had nothing to worry about and that an attorney would show up the next day at trial.”
The next day, on November 20, 2015, Abelyan waited outside the courthouse but no one from the Geragos Firm showed up. Abelyan called Qassim multiple times but she did not respond. Abelyan went into court by himself and discovered the judge had issued a bench warrant for not timely appearing at trial. He represented himself for the remainder of the trial, which resulted in a hung jury.
Abelyan contacted the Geragos Firm again and was instructed by Qassim to “wait and see” whether the prosecutor retried the case. When the charges were refiled, neither Qassim nor Geragos (nor anyone else from the Geragos Firm) provided services on Abelyan‘s behalf. Abelyan had exhausted his funds to pay the Geragos Firm and had no choice but to proceed with appointed counsel. Abelyan was convicted in the retrial and sentenced to four days in jail and probation.
On November 18, 2016, Abelyan sent a letter to Geragos, which provides in relevant part: “Mr. Geragos, I ask that you refund me the $25,000 retainer I paid on November 19, 2015.” Qassim “sensed desperation in me, . . . saw the money and took it. But she took it knowing she was never going to represent me. She never asked for any documents and I didn‘t see her till weeks after my [first] trial . . . . The DA did re-file, but [Qassim] was elusive. My phone calls were not returned. Out of options, I was assigned [appointed counsel].” “After the second trial ended . . . I came to the lobby repeatedly and demanded to see you.” The downstairs sign-in record shows “how many times I‘ve been in the lobby asking to see you or [Qassim]. There must be a record of two dozen calls and voicemails. I was given a runaround of a year.” “I am not trying to argue a contract with one of the most powerful attorneys in L.A., but consider the circumstances and the first sentence” of the retainer, which provides the Geragos Firm ” ‘will represent you related to the matter pending against you.’ ” At our meeting, you “calmed me down, you made me feel safe. Well worth the $2,500, but the $25,000 wasn‘t earned.
There was no representation or investigation or intent ever to do either.” “I know $25,000 isn‘t a lot of money to you or the firm, but to me right now it will make all the difference. . . . Please refund the $25,000.” The money was not refunded.
Abelyan reported the Geragos Firm to a number of bar organizations. He also retained Elliott N. Tiomkin of the Law Offices of Elliott N. Tiomkin (Tiomkin) to recover the retainer from the Geragos Firm.
On November 8, 2019, Abelyan filed a civil complaint against Geragos, Qassim, and the Geragos Firm (collectively, the Geragos Parties) for breach of contract, promissory fraud, and unlawful business practices (per
II. Cross-Complaint
On August 21, 2020, the Geragos Parties, represented by Greg Kirakosian (Kirakosian), filed a cross-complaint against Abelyan, Tiomkin, and his firm, asserting five causes of action: (1) civil extortion, (2) conspiracy to commit extortion, (3) negligence, (4) intentional infliction of emotional distress, and (5) violation of
On August 13, 2020, Kirakosian emailed Tiomkin to meet and confer regarding the Geragos Firm‘s intention to file a demurrer, a motion to strike
The next day, on August 14, 2020, Kirakosian called Tiomkin. Tiomkin “was uninterested in conducting a meet and
confer and . . . only discuss[ed] the immediate filing of a State Bar complaint against the Geragos Firm.” Kirakosian requested that Tiomkin “refrain from making such veiled threats.” The conversation ended when Tiomkin stated the Geragos Firm should return the $27,500 back to Abelyan “or Abelyan would be immediately filing a State Bar complaint.” Kirakosian then emailed and informed Tiomkin “all future phone conversations must be conducted with the presence of a certified court reporter.”
On August 18, 2020, Tiomkin “directly . . . contacted Alexandra Kazarian of the Geragos Firm” to discuss the case, in violation of
Based on the foregoing, the first cause of action in the cross-complaint alleged Tiomkin and Tiomkin‘s Firm “made
repeated attempts to extort funds from the Geragos Firm on Abelyan‘s behalf.” By “means of threats to present disciplinary charges in exchange for the immediate payment of $27,500.00,” Tiomkin violated
The third cause of action alleged Abelyan, Tiomkin, and his firm “breached the duty of care owed” to the Geragos Parties and “caused [the Geragos Parties] to suffer injuries.” The fourth cause of action alleged Abelyan and
The fifth cause of action alleged Tiomkin and his firm violated
not pay his client tens of thousands of dollars.” Tiomkin knew the Geragos Parties had legal representation, yet he contacted Kazarian “in an attempt to circumvent [Kirakosian] and extort [the Geragos Parties] directly.”
The Geragos Parties sought general damages, special damages, punitive and exemplary damages, attorney fees and costs.
III. Special Motions to Strike the Cross-Complaint
Abelyan, Tiomkin, and his firm filed special motions to strike3 the Geragos Parties’ cross-complaint as a strategic lawsuit against public participation under the anti-SLAPP statute,
Abelyan‘s declaration iterated the information included in part I above, entitled “Events Leading to Filing of Civil Complaint.”
Tiomkin‘s declaration provided:
Before filing suit on Abelyan‘s behalf, Tiomkin attempted to resolve the matter with the Geragos Firm and had discussions with Kirakosian and Kazarian, “who purported to represent the Geragos Firm and Mark Geragos.” Throughout these discussions, “Kirakosian acted as the ‘bad cop,’ taking a very aggressive approach that the Geragos Firm had no possible liability”
On August 13, 2020, Tiomkin received a “meet and confer” letter from Kirakosian—providing notice of the Geragos Parties’ intent to file a demurrer and motion to strike Abelyan‘s complaint and threatening to seek sanctions against Abelyan and Tiomkin personally. Kirakosian‘s letter, attached as an exhibit, characterized Abelyan‘s complaint as “fraudulent” and “frivolous.” Kirakosian‘s letter urged Tiomkin to refer to 1) the Geragos Firm‘s retainer agreement signed by Abelyan on November 19, 2015, and 2) Abelyan‘s November 18, 2016 letter to Geragos—both of which were attached as exhibits.
At no point during the discussions held August 13 and 14, 2020 did Tiomkin threaten to report the Geragos Parties to the State Bar or to pursue State Bar proceedings against them. Kirakosian and Tiomkin “did discuss Mr. Geragos’ history of State Bar investigations relating to similar conduct—i.e., taking client funds without performing services.” Tiomkin “believed
these investigations would be relevant to show a pattern and practice” and “intend[ed] to seek information about these investigations in discovery.” Kirakosian, however, refused to discuss any State Bar-related investigations into the Geragos Firm. Email communications between Tiomkin and Kirakosian were attached as exhibits.
Given Kirakosian‘s “antagonistic tone,” Tiomkin contacted Kazarian on August 18, 2020 to ascertain “whether she would still be amenable to trying to resolve this matter.” Kazarian “at no point suggested that she could not talk . . . about the case, or that [Tiomkin] should talk with [Kirakosian].” Tiomkin “did not threaten a State Bar complaint or proceeding during [his] conversation” with Kazarian. At some point, Kazarian “stepped away for a few minutes, stating that she wanted to consult with another attorney” and upon her return, “immediately and repeatedly brought up the possibility of a State Bar complaint and asked whether [Abelyan and Tiomkin] were planning to file one.” Tiomkin advised that they “had not decided at that point.” Kazarian told Tiomkin “in no uncertain terms that if [they] were going to settle this case, the settlement would have to include an agreement that [Abelyan and Tiomkin] would not report to the State Bar.” Tiomkin told Kazarian that he did not think they “could validly agree to refrain from reporting attorney misconduct, and likely could not make this a part of a settlement agreement.” Kazarian brought up State Bar proceedings “at least three times” during this conversation, “all following the break in [their] conversation.” Tiomkin‘s “only mention of a potential State Bar proceeding was in response to [Kazarian‘s] direct questions.”
On October 29, 2020, the Geragos Parties filed an opposition to the special motions to strike. They argued extortionate conduct is not protected by the anti-SLAPP statute and relied on
Supporting the opposition to the anti-SLAPP motion were the declarations of Geragos, Qassim, Kazarian, and Kirakosian.
Geragos‘s declaration provides: Kirakosian informed Geragos that Tiomkin “made repeated statements concerning State Bar complaints against [Geragos] as well as other repeated statements that [he] would be in custody soon.” Geragos had “not retained the services of [Kazarian] in connection to this matter nor [had he] ever requested or authorized her to speak with [Tiomkin] on [his] behalf.” Geragos learned from Kazarian that Tiomkin “repeated his threats to report [Qassim] and [him] to the
State Bar if [they] did not immediately pay [Abelyan] $27,500.00.” Geragos “felt extreme embarrassment” that Tiomkin contacted “a fellow colleague who had zero involvement in this dispute to discuss State Bar complaints against [him].” He “began having difficulty sleeping” and became “nervous, worried and anxious . . . because [he] believed . . . Tiomkin and [Abelyan] would attempt to fabricate false criminal charges and file a frivolous State Bar complaint against [him] in order to obtain a settlement.” Geragos subsequently learned that Abelyan‘s and Tiomkin‘s “extortion had been completed and [had] indeed made the false allegations against [him] and [Qassim] to the State Bar.”
Qassim‘s declaration repeats the statements from, and is nearly identical to, Geragos‘s declaration.
Kirakosian‘s declaration includes as exhibits a copy of email communications from Tiomkin and a transcript of the audio recording of Kazarian‘s
phone call with Tiomkin on August 14, 2020, Tiomkin “unequivocally stated that his client would be filing a State Bar complaint if the matter wasn‘t promptly resolved.” Kirakosian emailed Tiomkin and memorialized their phone conversation, to which Tiomkin replied that Kirakosian had “mischaracterized the conversation in its entirety.” On August 18, 2020, Kirakosian was informed by Kazarian that Tiomkin reached out to her directly to discuss the case. Kazarian told Kirakosian about Tiomkin‘s “settlement proposal“—“If the Geragos Firm pays $27,500.00, [Tiomkin] will not report the matter to the State Bar and the case would be dismissed.” Kirakosian told Kazarian that the settlement proposal “mirrors the threats” Tiomkin made to Kirakosian during their previous communications. Kazarian told Kirakosian she recorded the phone conversation and gave him the recording.
Kazarian‘s declaration provides: On August 18, 2020, she received “an unsolicited call” from Tiomkin wanting to discuss Abelyan‘s claims. Prior to this phone call, Kazarian had never spoken to Tiomkin about Abelyan‘s case. Tiomkin informed Kazarian he “had just seen [her] recent post on the Los Angeles County Bar Association‘s criminal list serve in which [she] recommended the Geragos Firm to another attorney.” Tiomkin told Kazarian he “was not contacting [her] in [her] capacity as an attorney for the Geragos Parties, but merely as a colleague of [Geragos] to relay a settlement offer directly to [Geragos] as his previous attempts to resolve the matter with [Kirakosian] had hit a ‘dead-end.’ ” Tiomkin informed Kazarian that Abelyan had not yet filed a State Bar complaint and would settle and refrain from doing so if the Geragos Parties pay $27,500.00. “As an experienced criminal defense attorney, [Kazarian] reasonably
believed that [Tiomkin] was in the commission of criminal extortion.” She placed Tiomkin on hold and informed Kirakosian of Tiomkin‘s call. She then resumed her call with Tiomkin and “legally record[ed] the conversation” to obtain evidence related to the crime of extortion. She confirmed Tiomkin‘s “previous unrecorded statement” that Abelyan would not file a State Bar complaint if the Geragos Parties returned the $27,500.00 retainer. Tiomkin told her he “didn‘t know how he could
V. Reply and Evidentiary Objections
Tiomkin concurrently filed a reply and evidentiary objections to portions of the declarations of Geragos, Qassim, Kirakosian, and Kazarian, as well as to some of the exhibits filed in support of the opposition, including the transcript of the audio recording.
In his reply, Tiomkin argues the Geragos Parties’ cross-complaint “is intended purely to gain leverage by turning opposing counsel into a co-defendant.” He argues there is no violation of
excerpts” and argues the secret recording is illegal and inadmissible: “[l]awyers are not allowed to record each other to gain advantage in civil cases.” Tiomkin further argues even if “these allegations are believed, stating that a client is unlikely to pursue legal remedies if a case settles is a far cry from criminal extortion.” Tiomkin contends Abelyan “had an absolute right to report the Geragos Parties to the State Bar for mishandling client funds. Merely implying that Abelyan might file a justified State Bar complaint is not a criminal threat.”
Abelyan filed a reply incorporating by reference the evidentiary objections and reply arguments by Tiomkin.
VI. Trial Court‘s Ruling
On December 10, 2020, after argument, the trial court granted both special motions to strike in their entirety. The court sustained Tiomkin‘s objections to the evidence attached to Kirakosian‘s declaration, “consisting of edited, partial recordings of a phone call secretly taken by” Kazarian without Tiomkin‘s consent and found the recording and its transcript inadmissible.
As to the first prong, the court found “it is clear that the allegations in the cross-complaint . . . depend upon a ‘written or oral statement . . . made in connection with an issue under consideration or review by a . . . judicial
As to the second prong, the court found Malin v. Singer (2013) 217 Cal.App.4th 1283 (Malin) dispositive and the “Civil Code section 47 litigation privilege applies as a matter of law.” The court found the “entirety of the allegations in the cross-complaint and the gravamen of each cause of action is related to litigation-related communications.” It ruled the Geragos Parties cannot demonstrate a probability of prevailing on their causes of action.
Lastly, the trial court found Abelyan, Tiomkin, and the Tiomkin firm “are entitled to recover their fees and costs as established in a properly noticed motion.”
The Geragos Parties timely appealed.
DISCUSSION
I. Standard of Review
We review a trial court‘s ruling on a special motion to strike pursuant to
We consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (
evidence only to determine if it has defeated the opposing party‘s evidence as a matter of law. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)
As
II. Applicable Law
A. The Anti-SLAPP Statute
The Legislature enacted
When a party moves to strike a cause of action under the anti-SLAPP law, a trial court evaluates the special motion to strike using a two-prong test: (1) has the moving party “made a threshold showing that the challenged cause of action arises from protected activity” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen)); and, if it has, (2) has the non-moving party demonstrated that the challenged cause of action has “minimal merit” by making “a prima facie factual showing
B. Crime of Extortion, Generally
Extortion is not a constitutionally protected form of speech. (Flatley, supra, 39 Cal.4th at p. 328.)
The Penal Code defines extortion to include “the obtaining of property or other consideration from another, with his or her consent, . . . induced by a wrongful use of force or fear.” (
“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 is perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.’ ” (Flatley, supra, 39 Cal.4th at p. 326.) Additionally,
“threats to do the acts that constitute extortion under
The Geragos Parties argue the trial court improperly found that Tiomkin‘s extortion attempts, on behalf of Abelyan, constituted conduct taken in furtherance of their right of petition and “[i]n so finding, . . . improperly sustained an objection to [the Geragos Parties‘] uncontroverted, admissible evidence that conclusively established the complained-of illegal extortion.”
We conduct our review de novo.
Step one of the anti-SLAPP analysis requires us to decide whether the moving parties—here, Abelyan, Tiomkin and his firm—have shown the claims in the cross-complaint arise from an act in furtherance of Abelyan‘s constitutional right to petition, i.e., protected activity. (
It is evident on the face of the cross-complaint that the Geragos Parties’ claims are entirely premised on three litigation and/or settlement communications: (1) the email communications between Tiomkin and Kirakosian; (2) the telephone conversation between Tiomkin and Kirakosian; and (3) the telephone conversation between Tiomkin and Kazarian.
There is no question that communications sent in anticipation of litigation or as part of ongoing litigation constitute
legitimate speech or petitioning activity protected under the anti-SLAPP statute. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 480 [“all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute”]; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963 [“ ‘[a]n attorney’s communication with opposing counsel on behalf of a client regarding pending litigation directly implicates the right to petition and thus is subject to a special motion to strike’ ”]; Navellier, supra, 29 Cal.4th at p. 90 [settlement negotiations are within the scope of
However, this protection does not extend to communication or conduct that is, as a matter of law, illegal. By contending the communications constituted extortion, the Geragos Parties argue the petitioning activity is unprotected. The watershed case in this regard is Flatley.
Flatley was a well-known entertainer and performer who sued attorney Mauro for conduct arising out of his representation of a client (Robertson)
Our Supreme Court examined the demand letter, which included “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.” (Flatley, supra, 39 Cal.4th at p. 329.) “The key passage in Mauro’s letter is . . . 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.’ ” (Ibid.) The demand letter’s “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.” (Ibid.) In Mauro’s follow-up phone calls, Mauro “named the price of his and Robertson’s silence as ‘seven figures’ or, at minimum, $1 million.” (Ibid.)
The Supreme Court concluded that Mauro’s letter and subsequent phone calls constituted “extortion as a matter of law” and were not constitutionally protected speech or petitioning activities under the anti-SLAPP statute. (Flatley, supra, 39 Cal.4th at pp. 328, 330 [“These communications threatened to ‘accuse’ Flatley of, or ‘impute to him,’ ‘crime[s]’ and ‘disgrace’ (
We note two very important distinctions the Supreme Court discussed in Flatley. First, it “note[d] 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 [the] declarations in opposition to the motion to strike.” (Flatley, supra, 39 Cal.4th at pp. 328–329.) This is why the Court viewed the evidence as uncontroverted as a matter of law. (Id. at p. 329.) Second, the Court emphasized that its conclusion that Mauro’s communications constituted criminal extortion as a matter of law was “based on the
Unlike Mauro in Flatley who conceded the content of the communications (telephone calls and letter), here, Tiomkin does not concede that he engaged in extortionate or illegal conduct as alleged by the Geragos Parties. Thus, the applicability of the Flatley exception hinges on whether the Geragos Parties provided uncontroverted evidence conclusively showing Abelyan and/or Tiomkin committed extortion as a matter of law. In analyzing the three litigation/settlement communications raised in the cross-complaint, we bear in mind the Supreme Court’s comment in Flatley that it found extortion as a matter of law “based on the specific and extreme circumstances” of that case. (Flatley, supra, 39 Cal.4th at p. 332, fn. 16.)
A. Telephone conversation between Tiomkin and Kirakosian
The Geragos Parties’ cross-complaint alleged that Kirakosian called Tiomkin on August 14, 2020, at which time Tiomkin “discuss[ed] the immediate filing of a State Bar complaint against the Geragos Firm.” Kirakosian requested Tiomkin “refrain from making such veiled threats.” The conversation ended when Tiomkin stated the Geragos Firm should return the $27,500 back to Abelyan “or Abelyan would be immediately filing a State Bar complaint.”
The evidence about the August 14, 2020 telephone conversation includes Kirakosian’s declaration submitted in support of the Geragos Parties’ opposition and Tiomkin’s declaration submitted in support of his and Abelyan’s special motions to strike. Kirakosian declared Tiomkin “unequivocally stated that his client would be filing a State Bar complaint if the matter wasn’t promptly resolved,” whereas Tiomkin declared that at no point during the discussion did he threaten to report the Geragos Parties to the State Bar or to pursue State Bar proceedings against them.
The declarations provide conflicting accounts of what was said during the August 14, 2020 telephone conversation. We do not solely rely on the Geragos Parties’ or Kirakosian’s declarations. (Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 837 (Flickinger) [their “subjective and self-serving interpretation cannot establish extortion as a matter of law”].) The declarations provided by both sides create a genuine issue of material fact (Soukup, supra, 39 Cal.4th at p. 286) and in no way qualify as uncontroverted evidence that conclusively establishes criminal extortionate conduct by Tiomkin.
The cross-complaint alleged Tiomkin raised the issue of State Bar violations to Kirakosian via email on August 13 and 14, 2020, and made veiled threats to report the Geragos Parties to the State Bar unless they paid $27,500.
The evidence as to this includes Tiomkin’s declaration in support of the anti-SLAPP motion, Kirakosian’s declaration in support of the opposition to the motion, and copies of the emails which were attached as exhibits to their declarations.
Tiomkin’s emails sent August 13 and 14, 2020 provide, in relevant part:
- “I appreciate your admission that your client stole $27,500 of my client’s funds for unspecified ‘investigation’ services. . . . [¶] . . . [¶] Also, as long as you are providing documentation, would you provide all documents concerning relevant State Bar investigations of Mr. Geragos and his associates pertaining to his theft of client funds?”
- “Setting aside the fact that the ‘fee agreement’ violates multiple State Bar rules, . . . [¶] . . . [¶] . . . I would be fascinated to learn what ‘investigation’ Mr. Geragos performed for $27,500. . . . I think that you should familiarize yourself with the State Bar’s position on true retainers, if this is going to be Mr. Geragos’ defense.”
- “I . . . inquired about whether Mr. Geragos was going to be available for deposition, given his indictment as an unnamed co-conspirator in the Avenatti case, and the possibility that he might be in federal custody in the near future. You said that you were aware of the federal investigation, but that at this point, no charges have bee filed against Geragos. [¶] I also asked if you were aware of a State Bar investigation related to Geragos’ theft of Mr. Abelyan’s funds. You stated that there are multiple inquiries involving Geragos and you were not going to get into them.”
- “I hope Mr. Geragos is staying well. Has he managed to remain out-of-custody?”
The Geragos Parties argue “Tiomkin’s veiled threats in emails to Kirakosian . . . constitute documented evidence of extortion that is undisputed.” They contend the facts of this case are analogous to Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799 (Mendoza) and Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405 (Stenehjem). We briefly recite their facts.
In Stenehjem, the cross-defendant litigant sent an email (the purported settlement demand) that “threatened to expose Sareen [(his former employer’s CEO)] to federal authorities for alleged violations of the False Claims Act unless he negotiated a settlement of Stenehjem’s private claims,” including defamation and wrongful termination. (Stenehjem, supra, 226 Cal.App.4th at p. 1423, italics added.) The email demand “mentioned a potential qui tam suit . . . and referred to potential involvement of the United States Attorney General, Department of Justice, and Department of Defense.” (Id. at pp. 1409–1410.) The Stenehjem court found that the absence of an express threat or a demand for a specific sum of money in the email did not negate its fundamental nature as an extortionate writing. (Id. at p. 1424.)
We find these cases inapposite. Nowhere in Tiomkin’s emails do we find a threat to file a State Bar claim coupled with a demand for money. In addition, unlike the alleged criminal activity that the cross-defendant litigant in Stenehjem threatened to expose in a qui tam action, which was “ ‘entirely unrelated’ ” to any alleged injury suffered by him in his defamation and wrongful termination claims (Stenehjem, supra, 226 Cal.App.4th at p. 1423), Tiomkin’s communications were related to the alleged injury his client suffered (i.e., breach of contract and promissory fraud claims for payment of a retainer to an attorney for services which were never rendered).
We agree with Abelyan and Tiomkin that Malin is dispositive. In Malin, attorney Singer sent a demand letter to his client’s business associates Malin and Moore, announcing his client’s intention to sue them for numerous wrongs. He attached to the demand letter a copy of the draft complaint with claims for embezzlement, breach of fiduciary duty, and conversion. (Malin, supra, 217 Cal.App.4th at p. 1289.) Singer accused Malin of embezzling and misusing company resources to arrange sexual liaisons with older men such as “Uncle Jerry,” a judge whose name was redacted, with a photo of the
The reviewing court concluded Singer’s demand letter was protected communication in anticipation of litigation and did not constitute criminal extortion as a matter of law “under the narrow exception articulated in Flatley.” (Malin, supra, 217 Cal.App.4th at pp. 1294, 1299.) The court reasoned that “[i]n contrast with the demand letters in Flatley and Mendoza, Singer’s demand letter did not expressly threaten to disclose Malin’s alleged wrongdoings to a prosecuting agency or the public at large.” (Id. at p. 1298.) The court further found the “secret” that would allegedly expose Malin to disgrace was inextricably tied to Singer’s client’s pending complaint, as the demand letter accused Malin of embezzling money and simply informed him that Singer’s client knew how he had spent those funds. (Id. at p. 1299.)
As in Malin, we conclude Tiomkin’s comments did not fall under the narrow Flatley exception. Misappropriation of client funds is the gravamen of the civil action against the Geragos Parties. If a threat to report such conduct to the State Bar was made, it had a reasonable connection to the underlying dispute and therefore is not comparable to the “extreme” conduct found unprotected by Flatley.
The Geragos Parties’ contention that Tiomkin’s communications violated
C. Telephone communication between Tiomkin and Kazarian
We preliminarily address the partial audio recording (and transcript), which the Geragos Parties argue is admissible. We conclude the trial court did not err in finding the audio recording inadmissible.
The Geragos Parties contend for the first time on appeal that Kazarian’s recording is not governed by
Second, the Geragos Parties’ representation that Kazarian was “a third-party . . . who does not represent any of the parties involved and had no prior knowledge of this dispute” is not well taken. Their cross-complaint expressly states Kazarian is “of the Geragos Firm” and “a representative of the Geragos Firm.” A litigant is bound by facts pleaded in a verified complaint. (Acuna v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 1416; see Brecher v. Gleason (1972) 27 Cal.App.3d 496, 499, fn. 1 [“A verified assertion in a pleading is a conclusive concession of the truth of the matter pleaded.”].)
The Geragos Parties next contend
Thus,
Without the recording, the only evidence about the telephone conversation between Tiomkin and Kazarian are their respective declarations, which result in a he-said-she-said conflict as to what was actually said. This does not equate to conclusive evidence of extortion as a matter of law. “If . . . a factual dispute exists about the legitimacy of the defendant’s conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff’s burden to show a probability of prevailing on the merits.” (Flatley, supra, 39 Cal.4th at p. 316.)
We find none of these communications presents extortion as a matter of law. We conclude Tiomkin and Abelyan made the threshold showing that the Geragos Parties’ cross-complaint is based on protected activity and thus subject to the anti-SLAPP statute.
IV. Prong 2: Probability of Prevailing
We proceed to prong two of the anti-SLAPP analysis—whether the Geragos Parties carried their burden of establishing a probability of prevailing on the causes of action of their cross-complaint.
The principal difficulty the Geragos Parties face in showing a probability of prevailing on their claims is California’s litigation privilege codified in
The principal purpose of the litigation privilege is to afford litigants and witnesses the utmost freedom of access to the courts without fear of harassment in subsequent derivative actions. (People ex rel. Gallegos v. Pacific Lumber Co. (2008) 158 Cal.App.4th 950, 958 (Gallegos).) “The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The privilege is an absolute privilege and bars all tort cases of action except a claim of malicious prosecution. (Flatley, supra, 39 Cal.4th at p. 322.) The privilege has been applied in “numerous cases” involving “fraudulent communication or perjured testimony.” (Silberg, at p. 218.) The litigation privilege
The litigation privilege is “not limited to statements made during a trial or other proceedings, but may extend to steps taken prior thereto, or afterwards.” (Rusheen, supra, 37 Cal.4th at p. 1057.) A prelitigation communication is privileged only if it relates to litigation that is contemplated in good faith and under serious consideration. (Flickinger, supra, 85 Cal.App.5th at p. 840.) The requirement of good faith contemplation and serious consideration provides some assurance that the communication has some connection or logical relation to a contemplated action and is made to achieve the objects of the litigation. (Ibid.) Whether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact. (Ibid.)
For instance, in Malin, supra, 217 Cal.App.4th at p. 1301, the reviewing court explained, “In order for a prelitigation communication such as [attorney] Singer’s demand letter to be privileged under
Here, the cross-complaint is based on discussions between counsel—via email and telephone call—where a potential State Bar complaint was referenced in connection with a pending lawsuit. The communication thus meets the criteria stated in Malin and in Flickinger—it bears a connection or logical relation to ongoing litigation initiated by Abelyan via his civil complaint and his counsel Tiomkin’s efforts to settle and avoid further
The Geragos Parties also contend we “should reverse the determination of the [t]rial [c]ourt and hold that the litigation privilege does not apply to Tiomkin’s communication with Kazarian.” They argue Kazarian did not represent the Geragos Parties and did not have a substantial interest in this matter. However, as already discussed in the preceding section, the cross-complaint expressly states Kazarian is “a representative of the Geragos Firm.”
In short, given the absolute nature of the litigation privilege, the Geragos Parties did not carry their burden of showing a probability of overcoming Tiomkin’s and Abelyan’s litigation privilege defense. Accordingly, the trial court properly granted the special motions to strike the cross-complaint.
V. Attorney Fees
Lastly, the Geragos Parties’ sole basis for challenging the award of attorney fees and costs to Tiomkin and Abelyan under
The trial court’s order sustaining respondents’ evidentiary objections is affirmed. The order granting the anti-SLAPP motion is affirmed. The trial court’s attorney fee award made pursuant to
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
GRIMES, J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.