Filed 7/27/06 (this opn. should follow companion case, S126715, filed same date; use “print layout” in
Microsoft Word, or use .pdf version, to view appendix)
IN THE SUPREME COURT OF CALIFORNIA
MICHAEL FLATLEY,
Plaintiff and Respondent,
S128429
v.
Ct.App. 2/5 B171570
D. DEAN MAURO,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BC291551
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.1 (Code Civ. Proc., § 425.16.) He argued that the letter was a
prelitigation settlement offer and therefore Flatley’s complaint arose from Mauro’s
exercise of his constitutionally protected right of petition. The trial court denied
1
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’ ”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) All
further unspecified statutory references are to the Code of Civil Procedure.
1
the motion. The Court of Appeal held that, because Mauro’s letter and subsequent
telephone calls constituted criminal extortion as a matter of law, and extortionate
speech is not constitutionally protected, the anti-SLAPP statute did not apply.
Therefore, it affirmed denial of Mauro’s motion to strike. We granted Mauro’s
petition for review.
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 anti-SLAPP 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, an Illinois attorney.
2
Robertson and Mauro then appeared on television, where Robertson described the
alleged rape “in extremely lurid detail.”2
On March 6, 2003, Flatley filed his complaint in the present action in
California against Mauro, Robertson and Doe defendants.3 In a second amended
complaint, Flatley alleged five causes of action for civil extortion, defamation,
fraud, intentional infliction of emotional distress, and wrongful interference with
prospective economic advantage. The civil extortion, intentional infliction of
emotional distress and wrongful interference causes of action were alleged against
all defendants; the defamation and fraud causes of action were alleged against
Robertson alone.
2
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
Flatley’s request. Both the Attorney General and Flatley 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. 24-31.) 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) 19 Cal.4th 1106, 1120.)
Accordingly, we grant the requests.
3
Robertson is not a party to this appeal.
3
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 anti-SLAPP
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.4
The declarations submitted by Flatley set forth the following scenario:
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
4
The only declaration Mauro submitted in support of his motion to strike
Flatley’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 his reply. Finally, Mauro stated that
“since a settlement could not be reached” he filed Robert’s suit. In his reply to
Flatley’s opposition to the motion to strike, Mauro objected to portions of the
declarations submitted by Flatley. The trial court did not rule on those objections
nor does the record reveal that Flatley pressed for a ruling. His objections are
therefore deemed forfeited and we consider Flatley’s declarations in their entirety.
(Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 710; Slauson Partnership
v. Ochoa (2003) 112 Cal.App.4th 1005, 1014, fn. 4.)
4
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.5 In
small print, it stated: “This communication is governed by all 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.” The
subject line stated in all-capital, boldface, underlined type: “LAWSUIT
AGAINST MICHAEL FLATLEY, INDIVIDUALLY, AND UNICORN
5
The letter is reproduced in its entirety as appendix A.
5
ENTERTAINMENT, INC., AND THE VENITION [sic] RESORT-HOTEL-
CASINO VENTURE GROUP[.]” Mauro identified his client as “Jane Doe” and
referred to a report on file with the Las Vegas Police Department. The next line
stated “Date of Rape/Sex Assault: October 19-20, 2002.”
The letter was addressed: “Dear Flatley, et. al., [sic] [¶] Please be advised
that we represent a women [sic] 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” “Please consider this as Notice of our Attorneys’ [sic]
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, [sic: 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 “advise[]” 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
6
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” 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
[sic] testimony.” The third paragraph states in its entirety: “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.” After a paragraph
describing the potential testimony of two other experts, John Lombardi and David
K. Hershey, apparently with respect to the failure of the Las Vegas hotel in which
the alleged rape occurred to “provide requisite safeguard for our client,” the fifth
paragraph again warns that “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 [be]
turned over to any and all appropriate authorities.” The final paragraph warns
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
7
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. 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 added to the earlier
report because she “did not get an adequate opportunity to explain.” She added,
8
however, that she had no “interest in seeing the Initial Incident Complaint form,”
because she was “a private person, and this is not something about which I can
openly or freely explain to people.” She also wrote that she could not at that time
go into “more specific, or graphic details” because she was not “in any condition
to relive this.”
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
9
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 called Mauro later that day. Mauro told Fields he knew how to “play
hardball” and that if Flatley did not pay an acceptable amount, he and Robertson
would “go public.” Mauro said he would ensure that the story would follow
Flatley wherever he or his troupes performed and would “ruin” him. Fields asked
Mauro how much he was demanding and Mauro replied “it would take seven
figures.”
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,
10
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.6
II. 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 constitutionally
protected rights of free speech or petition for redress of grievances. (§ 425.16,
subd. (b)(1).) We described the purpose of the statute, and the process by which a
motion to strike is determined, in the companion case, Soukup v. Hafif (July 27,
2006, ___ Cal.4th ____, S126715/S126864) where we said: “ ‘The Legislature
enacted section 425.16 to prevent and deter “lawsuits [referred to as SLAPP’s]
brought primarily to chill the valid exercise of the constitutional rights of freedom
of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).)
6
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].)
11
Because these meritless lawsuits seek to deplete “the defendant’s energy and drain
his or her resources” [citation], the Legislature sought “ ‘to prevent SLAPPs by
ending them early and without great cost to the SLAPP target.’ ” [Citation.]
Section 425.16 therefore establishes a procedure where the trial court evaluates the
merits of the lawsuit using a summary-judgment-like procedure at an early stage
of the litigation.’ (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180,
192; Jarrow Formulas, Inc. v. LaMarche[, supra,] 31 Cal.4th [at p.] 737 [Section
425.16 ‘is a procedural device for screening out meritless claims’].) [¶] . . . [¶]
The Legislature’s purpose in enacting the anti-SLAPP statute is set forth in its
findings and declarations. ‘The Legislature finds and declares that it is in the
public interest to encourage participation in matters of public significance, and that
this participation should not be chilled through abuse of the judicial process.’
(§ 425.16, subd. (a).) Furthermore, to accomplish this purpose the Legislature has
directed that the statute ‘be broadly construed.’ (Ibid.) To this end, when
construing the anti-SLAPP statute, ‘[w]here possible we follow the Legislature’s
intent, as exhibited by the plain meaning of the actual words of the law . . . .
[Citation.]’ (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 733,
quoting California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist.
(1997) 14 Cal.4th 627, 632.)” (Id. at pp. ___-___ [at pp. 15-16].)
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, 31 Cal.4th 728, 735 [no categorical exemption
for malicious prosecution actions under section 425.16 where the Legislature had
not created such an exemption]; City of Cotati v. Cashman (2002) 29 Cal.4th 69,
74-76 [declining to read into section 426.16 a requirement that a defendant
demonstrate that the plaintiff’s action actually intended to chill the defendant’s
12
exercise of his or her protected rights]; Briggs v. Eden Council, supra, 19 Cal.4th
at pp. 1113-1117 [section 425.25, subdivision (e)(1) and (2) do not require that
statements made before, or in connection with an issue pending before an official
proceeding, also involve an issue of public significance absent statutory language
to that effect].) In short, our anti-SLAPP jurisprudence has attempted to effectuate
the central purpose of the statute by carefully examining the actual words of the
statute and giving them their plain meaning.
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.” (§ 426.16, 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) 91 Cal.App.4th 832, 851
[violence and other criminal acts are not protected by the First Amendment even if
committed out of political motives at a political demonstration, nor would Doe
defendants who engaged in such activity be protected by the anti-SLAPP statute].)
The “scope of [section 425.16] is not without limits, as demonstrated in . . . cases
finding lawsuits were not within its protection. [Citations.]” (Paul v. Friedman
(2002) 95 Cal.App.4th 853, 864.) The case most often cited in support of this
proposition is Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 (Paul),
disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 68, footnote 5. Flatley argues, and the Court of Appeal
agreed, that Paul is dispositive of the issues raised in this case, so we examine it in
some detail.
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
13
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, 85 Cal. App.4th at p. 1361, italics omitted.)
The defendants “moved to strike the complaint” as a SLAPP but “[t]heir moving
papers . . . show[ed] that they in fact did violate the Political Reform Act when
they laundered campaign contributions to persons running for local or state
offices.” (Ibid.) Nonetheless, the “defendants argued that their money laundering
was ‘in furtherance of [their] constitutional rights of free speech’ and ‘[arose] out
of acts in furtherance of [their] constitutionally protected conduct.’ ” (Id. at pp.
1361-1362.) The plaintiff argued in his opposition that “section 425.16 [did] not
apply in this case because defendants’ actions in laundering campaign money do
not constitute constitutionally protected activity.” (Id. at p. 1362.)
The Court of Appeal agreed with the plaintiff. After quoting the language
of section 425.16, subdivision (a) on the purpose of the statute, the court discussed
the respective burdens the statute places on the parties upon the filing of a motion
to strike. “First, the court decides whether the defendant has made a threshold
prima facie showing that the defendant’s acts, of which the plaintiff complains,
were ones taken in furtherance of the defendant’s constitutional rights of petition
or free speech in connection with a public issue. [Citation.] If the court finds that
such a showing has been made, then the plaintiff will be required to demonstrate
that ‘there is a probability that the plaintiff will prevail on the claim.’ [Citations.]
The defendant has the burden on the first issue, the threshold issue; the plaintiff
has the burden on the second issue.” (Paul, supra, 85 Cal. App.4th at p. 1364, fn.
omitted.)
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
14
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, 85 Cal.App.4th at p. 1365.)
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, 85 Cal.App.4th
at p. 1365.)
Paul acknowledged that the “making of a political campaign contribution is
a type of political speech.” (Paul, supra, 85 Cal.App.4th at pp. 1365.)
Nonetheless it rejected the defendants’ claim that, because their money laundering
activity was taken “in furtherance of their constitutional right of free speech,” the
activity fell within the ambit of the anti-SLAPP statute even though illegal. (Ibid.)
“[T]he probability that the Legislature intended to give defendants section 425.16
protection from a lawsuit based on injuries they are alleged to have caused by their
15
illegal campaign money laundering scheme is as unlikely as the probability that
such protection would exist for them if they injured plaintiff while robbing a bank
to obtain money for the campaign contributions or while hijacking a car to drive
the campaign contributions to the post office for mailing. . . . Thus, while it is
technically true that laundering campaign contributions is an act in furtherance of
the giving of such contributions, that is, is in furtherance of an act of free speech,
we reject the notion that section 425.16 exists to protect such illegal activity.” (Id.
at p. 1366.)
In support of its conclusion, Paul cited Wilcox v. Superior Court (1994) 27
Cal.App.4th 809, disapproved on other grounds in Equilon Enterprises v.
Consumer Cause, Inc., supra, 29 Cal.4th at page 68, footnote 5, which
distinguished between activity that would be protected under the statute and
activity that would not. “Thus, if the defendant’s act was a lawsuit against a
developer the defendant would have a prima facie First Amendment defense.
[Citation.] But, if the defendant’s act was burning down the developer’s office as
a political protest the defendant’s motion to strike could be summarily denied
without putting the developer to the burden of establishing the probability of
success on the merits in a tort suit against defendant.” (Wilcox v. Superior Court,
supra, 27 Cal.App.4th at p. 820.) The Paul court commented: “While laundering
campaign money may not be as dramatic or physically dangerous as burning down
a building, it is equally outside the scope of section 425.16’s protection.” (Paul,
supra, 85 Cal.App.4th at p. 1367.)
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 activities for which they claim constitutional protection.
16
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, 85 Cal.App.4th at p. 1367.) The court
explained that, if the plaintiff contested the validity of the defendant’s exercise of
protected rights “and unlike the case here, cannot demonstrate as a matter of law
that the defendant’s acts do not fall under section 425.16’s protection, then the
claimed illegitimacy of the defendant’s acts is an issue which the plaintiff must
raise and support in the context of the discharge of the plaintiff’s burden to
provide a prima facie showing of the merits of the plaintiff’s case.” (Ibid.)
In
Paul, then, the court discerned that section 425.16, by its express terms,
does not apply to any activity that can conceivably be characterized as being “ ‘in
furtherance’ ” of a defendant’s protected speech or petition rights if, as a matter of
law, that activity was illegal and by reason of the illegality not constitutionally
protected. (Paul, supra, 85 Cal.App.4th at p. 1367.) In such a narrow
circumstance, where either the defendant concedes the illegality of its conduct or
the illegality is conclusively shown by the evidence, the motion must be denied.
The rationale is that the defendant cannot make a threshold showing that the
illegal conduct falls within the purview of the statute and promotes section
425.16’s purpose to “prevent and deter ‘lawsuits [referred to as SLAPP’s] brought
primarily to chill the valid exercise of the constitutional rights of freedom of
speech and petition for the redress of grievances.’ (§ 425.16, subd. (a).)” (Varian
Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th at p. 192.) If, however, 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.
17
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) 135 Cal.App.4th 606, 621 [“[I]f the defendant concedes the conduct
complained of was illegal, the defendant will be unable to make a prima facie
showing the action arises from protected activity within the meaning of section
425.16”]; Huntingdon Life Sciences v. Stop Huntingdon Animal Cruelty U.S.A.,
Inc. (2005) 129 Cal.App.4th 1228, 1246 [“If a defendant concedes or the evidence
conclusively establishes the conduct complained of was illegal, as a matter of law
the defendant cannot make a prima facie showing the action arises from protected
activity within the meaning of section 425.16”]; 1-800 Contracts, Inc. v. Steinberg
(2003) 107 Cal.App.4th 568, 584 [Noting Paul “explicitly recognized that the
validity of defendant’s act comes into play in the second stage of the statutory
analysis. [Citation.] It held, however, that the defendants, having admitted
engaging in illegal campaign contributions (the subject of the suit), had
established that their acts had not been in furtherance of their constitutional
rights”]; Yu v. Signet Bank of Virginia (2002) 103 Cal.App.4th 298, 317, fn. 3 [“It
is not argued that the illegality of Banks’ petitioning activity has been effectively
conceded, or conclusively established by the evidence”]; Governor Gray Davis
Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 459 [“Here, in
contrast [to Paul], appellant neither has conceded nor does the evidence
conclusively establish the illegality of its communication made during the course
of debate on political issues”]; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083,
1090 [“A limited exception to the rule precluding a court from determining the
validity of the asserted constitutional right in the first step of the anti-SLAPP
analysis applies only where the defendant indisputably concedes the claim arose
from illegal or constitutionally unprotected activity”].)
18
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 Courts 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,] 85 Cal.App.4th 1356, disapproved on other grounds in Equilon
Enterprises v. Consumer Cause Inc., supra, 29 Cal.4th at p. 15, fn. 5.” (Soukup v.
Hafif, supra, ___ Cal.4th at p. ___ [at p. 24].)7
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, 85 Cal.4th at p. 1365 [“[T]he activity of
which plaintiff complains . . . was not a valid activity undertaken by defendants in
7
Section 425.18 does not apply in this case because Flatley’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.
19
furtherance of their constitutional right [to] free speech”].) Moreover, it would
eviscerate the first step of the two-step inquiry set forth in the statute if the
defendant’s mere assertion that his underlying activity was constitutionally
protected sufficed to shift the burden to the plaintiff to establish a probability of
prevailing where it could be conclusively shown that the defendant’s underlying
activity was illegal and not constitutionally protected. While a defendant need
only make a prima facie showing that the underlying activity falls within the ambit
of the statute, clearly the statute envisions that the courts do more than simply
rubber stamp such assertions before moving on to the second step. (Wilcox v.
Superior Court, supra, 27 Cal.App.4th at p. 819 [“[I]t is fundamentally fair that
before putting the plaintiff to the burden of establishing probability of success on
the merits the defendant be required to show imposing that burden is justified by
the nature of the plaintiff’s complaint”].) Furthermore, as the Attorney General
points out in his amicus curiae brief, “[i]f the courts rule that a defendant who has
engaged in indisputably illegal behavior . . . has met the first step of the motion to
strike, the defendant can then shift the burden to the plaintiff and force his victim
to [marshal] and present evidence early in the litigation before the commencement
of full discovery . . . . [I]f the plaintiff/victim is unable to show a probability of
prevailing, he will have to pay the defendant’s attorneys fees. (See § 425.16,
subd. (c).) These are . . . grossly unfair burdens to impose on a plaintiff who is
himself the victim of the defendant’s criminal activity.”
Citing
Navellier v. Sletten (2002) 29 Cal.4th 82 (Navellier), Mauro argues
that any claimed illegitimacy of the defendant’s assertion of protected rights in a
motion to strike under section 425.16 must be decided under the second step of the
statutory inquiry, which requires plaintiffs to show their action has “minimal
merit.” (Navellier, at p. 89.) Navellier, however, is not dispositive of the issue
before us.
20
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 v. Sletten, 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 v. Sletten, supra, 29 Cal.4th at p. 87.) The defendant filed a motion to
strike the complaint as a SLAPP. The trial court denied the motion and the Court
of Appeal affirmed. We reversed.
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 they did. We
observed that the fraud claim was based on the defendant’s “negotiation,
execution, and repudiation of the Release” which “limited the types of claims that
[the defendant] was allowed to file in the federal action,” and that the “plaintiffs
relied on the Release” when they moved to dismiss the defendant’s counterclaims.
21
(Navellier v. Sletten, supra, 29 Cal.4th at p. 90.) Thus, the defendant’s
“negotiation and execution of the Release . . . involved ‘statement[s] or writing[s]
made in connection with an issue under consideration or review by a . . . judicial
body’ (§ 425.16, subd. (e)(2)), i.e., the federal district court, and his arguments
respecting the Release’s validity were ‘statement[s] or writing[s] made before a
. . . judicial proceeding’ (id., subd. (e)(1)), i.e., the federal action.” (Ibid.)
Similarly, we concluded that the plaintiffs’ breach of contract cause of action
involved activity protected by the anti-SLAPP statute because it was based on the
defendant’s filing of his counterclaims in the federal action. “A claim for relief
filed in federal district court indisputably is a ‘statement or writing made before a
. . . judicial proceeding.’ ” (Ibid.)
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 v. Sletten, supra, 29 Cal.4th at
p. 94.) The precise argument, as summarized in the dissent, was that “[t]he breach
of contract claim is not a SLAPP because [the defendant] had exchanged his right
to sue through the release for consideration, and thus his petitioning was not a
‘valid exercise’ of that right.” (Id. at p. 97 (dis. opn. of Brown, J.).) The majority
disagreed. “That the Legislature expressed a concern in the statute’s preamble
with lawsuits that chill the valid exercise of First Amendment rights does not
mean that a court may read a separate proof-of-validity requirement into the
operative sections of the statute. [Citations.] Rather, any ‘claimed illegitimacy of
the defendant’s acts is an issue which the plaintiff must raise and support in the
context of the discharge of the plaintiff’s [secondary] burden to provide a prima
facie showing of the merits of the plaintiff’s case.’ (Paul[, supra,] 85 Cal.App.4th
1356, 1367.)” (Id. at p. 94.) We concluded that a defendant is not required to
establish that its actions are constitutionally protected as a matter of law because
22
such a requirement would render the second prong of the anti-SLAPP statute
“ ‘superfluous.’ ” (Id. at p. 95.)
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 plaintiff’s secondary burden to show the action has
“minimal merit,” (Navellier v. Sletten, supra, 29 Cal.4th at p. 87), we expressed no
opinion regarding Paul’s conclusion that the anti-SLAPP statute does not apply in
those rare cases where the defendant’s assertedly protected speech or petitioning
activity is conclusively demonstrated to have been illegal as a matter of law.
“A decision, of course, does not stand for a proposition not considered by
the court.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 343.) Accordingly,
Navellier’s holding — that the anti-SLAPP statute does not require defendants
who bring motions to strike under section 425.16 to prove their asserted exercise
of protected speech or petition rights was valid as a matter or law — is not
dispositive of the question presented here of whether a defendant whose
underlying conduct is conclusively demonstrated to have been illegal as a matter
of law, and thus unprotected by the federal and state constitutional speech and
petition guarantees, is foreclosed from invoking the anti-SLAPP statute in the first
instance.
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
23
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 section 425.16
because it falls within subdivision (e)(1) and (2).8 In advancing this argument, he
8
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 forum 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.”
24
invokes the litigation privilege set forth in Civil Code section 47, subdivision (b).
He argues, first, that section 425.16 protects litigation communication to the same
degree that such communication is protected by the litigation privilege and then
reasons from this premise that section 425.16 must also protect unlawful litigation-
related communication because the litigation privilege does.9 He claims Paul is
inapplicable to this case because it did not involve litigation-related
communications protected by section 425.16, subdivision (e)(1) or (2) but, rather,
noncommunicative conduct protected by subdivision (e)(4).10 We disagree.
9
Civil Code section 47, subdivision (b) states in relevant part: “A privileged
publication or broadcast is one made: [¶] . . . [¶] (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 . . . .”
10
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)(2) — “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) 68
Cal.2d 267, 278-279.) Moreover, the premise of Mauro’s argument – that all
prelitigation communication is protected by subdivision (e)(2) even if it includes
constitutionally unprotected speech, like extortionate speech, because the speech
was uttered in the context of litigation conflates the litigation privilege with the
anti-SLAPP statute in a manner we reject for the reasons set forth above. His
argument is also profoundly inconsistent with the basic purpose of the anti-
SLAPP statute to prevent the chilling of “the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of grievances” “through
abuse of the judicial process.” (§ 425.16, subd. (a).)
25
“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) 50 Cal.3d 205, 213.) Additionally, the privilege promotes
effective judicial proceedings by encouraging “ ‘open channels of communication
and the presentation of evidence’ ” without the external threat of liability (ibid.),
and “by encouraging attorneys to zealously protect their clients’ interests.” (Id. at
p. 214.) “Finally, in immunizing participants from liability for torts arising from
communications made during judicial proceedings, the law places upon litigants
the burden of exposing during trial the bias of witnesses and the falsity of
evidence, thereby enhancing the finality of judgments and avoiding an unending
roundelay of litigation, an evil far worse than an occasional unfair result.” (Ibid.)
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) 32 Cal.4th 350, 360.) The litigation
privilege has been applied in “numerous cases” involving “fraudulent
communication or perjured testimony.” (Silberg v. Anderson, supra, 50 Cal.3d at
p. 218; see, e.g., Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 20,
22-26 [attorney’s misrepresentation of available insurance policy limits to induce
the settlement of a lawsuit]; Doctors’ Co. Ins. Services v. Superior Court (1990)
225 Cal.App.3d 1284, 1300 [subornation of perjury]; Carden v. Getzoff (1987)
190 Cal.App.3d 907, 915 [perjury]; Steiner v. Eikerling (1986) 181 Cal.App.3d
639, 642-643 [preparation of a forged will and presentation of it for probate];
O’Neil v. Cunningham (1981) 118 Cal.App.3d 466, 472-477 [attorney’s letter sent
in the course of judicial proceedings allegedly defaming his client].) The privilege
has also been held to apply to “statements made prior to the filing of a lawsuit.”
(Hagberg v. California Federal Bank, supra, 32 Cal.4th at p. 361.) Seizing
upon
26
these principles, Mauro maintains that section 425.16 similarly protects any
prelitigation-related communications even if that communication constitutes
extortion.11 Assuming without deciding that the litigation privilege may apply to
such threats, we conclude that they are nonetheless not protected under the anti-
SLAPP statute because the litigation privilege and the anti-SLAPP statute are
substantively different statutes that serve quite different purposes, and it is not
consistent with the language or the purpose of the anti-SLAPP statute to protect
such threats.
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
looked to the litigation privilege as an aid in construing the scope of subdivision
(e)(1) and (2) with respect to the first step of the two-step anti-SLAPP inquiry –
that is, by examining the scope of the litigation privilege to determine whether a
given communication falls within the ambit of subdivisions (e)(1) and (2).
For example, in Briggs v. Eden Council for Hope & Opportunity, supra, 19
Cal.4th 1106, we declined to read into section 425.16, subdivision (e)(1) and (2),
which protect statements made before, or in connection with, an issue pending
before an official proceeding, a further requirement that the statements concern an
issue of public significance. In so holding, we observed that imposing a “ ‘public
issue’ requirement” as a condition to protecting litigation-related communications
under the anti-SLAPP statute would produce an “anomalous result.” (Briggs v.
11
Flatley asserts that, even if Mauro’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, 19 Cal.4th at page 1115 [“ ‘communications
preparatory or in anticipation of bringing an action or other official proceeding’ ”
are protected by section 425.16].)
27
Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1121.) Litigation-
related communications that did not involve a public issue would not be protected
under the anti-SLAPP statute but would nonetheless be privileged under the
litigation privilege, and protected by state and federal constitutional guarantees of
the right of petition. (Ibid.) Thus, in Briggs, we bolstered our interpretation of the
scope of the protection afforded to litigation-related communications under the
anti-SLAPP statute by looking at whether our result was consistent with the scope
of the protection afforded to such communications by the litigation privilege.
Nowhere in Briggs, however, did we suggest, much less hold, that the scope of
those protections are identical in every respect.
The litigation privilege is also relevant to the second step in the anti-SLAPP
analysis in that it may present a substantive defense the plaintiff must overcome to
demonstrate a probability of prevailing. (See, e.g., Kashian v. Harriman (2002)
98 Cal.App.4th 892, 926-927 [Where plaintiff’s defamation action was barred by
Civil Code section 47, subdivision (b), plaintiff cannot demonstrate a probability
of prevailing under the anti-SLAPP statute]; Dove Audio, Inc. v. Rosenfeld, Myer
& Susman (1996) 47 Cal.App.4th 777, 783-785 [Defendant’s prelitigation
communication privileged and trial court therefore did not err in granting motion
to strike under the anti-SLAPP statute].)
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 Formula, Inc. v. LaMarche, supra, 31 Cal.4th 728, we declined
to create a categorical exemption from section 425.16 for malicious prosecution
actions even though such claims are exempt from the litigation privilege. We
rejected the plaintiff’s “attempted analogy between the litigation privilege and the
anti-SLAPP statute” as “inapt,” explaining “the litigation privilege is an entirely
different type of statute than section 425.16. The former enshrines a substantive
28
rule of law that grants absolute immunity from tort liability for communications
made in relation to judicial proceedings [citation]; the latter is a procedural device
for screening out meritless claims [citation].” (Jarrow Formula, Inc., at p. 737.)
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, 50 Cal.3d at p. 214; Doctors’ Co. Ins. Services v. Superior
Court, supra, 225 Cal.App.3d at p. 1300 [the litigation privilege applies to
subornation of perjury because “it is in the nature of a statutory privilege that it
must deny a civil recovery for immediate wrongs – sometimes even serious and
troubling ones – in order to accomplish what the Legislature perceives as a greater
good”].)
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, 27 Cal.App.4th at p. 819 [“If the defendant’s act is not constitutionally
protected how can doing the act be ‘in furtherance’ of the defendant’s
constitutional rights?”].) Thus, the rationale for applying the litigation privilege to
29
some forms of illegal conduct – like perjury – because the occasional bad result is
justified by the larger goal of access to the judicial process is simply not
transferable to the anti-SLAPP statute because the latter statute does not promote
the same goals as the former. Moreover, by its very terms, section 425.16 does
not apply to activity that is not in furtherance of the constitutional rights of free
speech or petition and this would necessarily include illegal activity that falls
outside protected speech and petition rights. (See, Wilcox, at p. 820 [the anti-
SLAPP statute would not apply to a defendant’s act of burning down a developer’s
office as a political protest].)
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 (1986) 42 Cal.3d 1157, that statutory
privilege is specific and limited in nature. In Oren, we concluded that while Civil
Code section 47 prohibited an action based on a party’s statements made during
settlement negotiations, it did not preclude the use of those statements as evidence
of the party’s intent to establish an abuse of process claim. (Oren, supra, 42
Cal.3d at pp. 1167-1168.) We stated: “ ‘The privileges of Civil Code section 47,
unlike evidentiary privileges which function by the exclusion of evidence [citation],
operate as limitations upon liability.’ (Italics added.) Indeed, on brief reflection,
it is quite clear that section [47, subdivision (b)] has never been thought to bar the
evidentiary use of every ‘statement or publication’ made in the course of a judicial
proceeding . . . .” (Oren, at p. 1168.)
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
30
proposing settlement of proposed litigation does not mean that the settlement letter
is also a protected communication for purposes of section 425.16.12 Therefore, we
reject Mauro’s contention that, because some forms of illegal litigation-related
activity may be privileged under the litigation privilege, that activity is necessarily
protected under the anti-SLAPP statute.
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, Inc.
(2004) 122 Cal.App.4th 1049, 1056.) We consider ‘the pleadings, and supporting
12
Mauro cites Blanchard v. DIRECTV (2004) 123 Cal.App.4th 903, to
establish that the anti-SLAPP statute applies to prelitigation demand letters that
are extortionate because such letters are protected by the litigation privilege. In
Blanchard the plaintiffs received letters from DIRECTV, a satellite television
programming provider, explaining that use of illegal equipment purchased by the
plaintiffs that unscrambled DIRECTV’s signal violated federal law and offering an
opportunity to resolve the matter before commencement of suit. (Id. at pp. 909-
910.) Thereafter, the plaintiffs sued DIRECTV alleging that the mailing of the
demand letters constituted an unfair business practice. (Bus. & Prof. Code,
§ 1700), violated their civil rights and constituted extortion. DIRECTV filed a
motion to strike the lawsuit as a SLAPP and prevailed. As relevant here,
DIRECTV argued, and the Court of Appeal agreed, that the demand letters were
privileged under the litigation privilege as prelitigation communication and,
therefore, the plaintiffs could not establish a probability of prevailing under the
second prong of the anti-SLAPP statute. (Blanchard, supra, 123 Cal.App.4th at
pp. 918-922.) Thus, Blanchard did not involve the question of whether the
demand letter was extortion as a matter of law and thus unprotected by the First
Amendment so as to bar DIRECTV from using the anti-SLAPP statute to strike
the plaintiffs’ action. Rather, the plaintiffs conceded that their lawsuit arose from
DIRECTV’s protected petitioning activity. (Id. at p. 918.) Accordingly,
Blanchard is irrelevant to the issues presented here.
31
and opposing affidavits upon which the liability or defense is based.’ (§ 425.16,
subd. (b)(2).) 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.’ (HMS Capital, Inc. v.
Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)” (Soukup v. Hafif, supra,
___ Cal.4th at p. ____, fn. 3 [at p. 3, fn. 3].)
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)
218 Cal.App.3d 1058, 1079.)13 The extortion statutes “all adopted at the same
13
In popular parlance extortion is “sometimes called ‘blackmail.’ ” (People
v. Sales (2004) 116 Cal.App.4th 741, 748.)
32
time and relating to the same subject matter, clearly indicate that the legislature in
denouncing the wrongful use of fear as a means of obtaining property from
another had in mind threats to do the acts specified in section 519, the making of
which for the purpose stated is declared to be a wrongful use of fear induced
thereby.” (People v. Beggs (1918) 178 Cal. 79, 83.) “It is the means employed [to
obtain the property of another] which the law denounces, and though the purpose
may be to collect a just indebtedness arising from and created by the criminal act
for which the threat is to prosecute the wrongdoer, it is nevertheless within the
statutory inhibition. The law does not contemplate the use of criminal process as a
means of collecting a debt.” (Id. at p. 84; People v. Tufunga (1999) 21 Cal.4th
935, 955 [In Beggs “we explained that because of the strong public policy
militating against self-help by force or fear, courts will not recognize a good faith
defense to the satisfaction of a debt when accomplished by the use of force or
fear”]; Lindenbaum v. State Bar (1945) 26 Cal.2d 565, 573 [For purposes of
extortion “[i]t is immaterial that the money which petitioner sought to obtain
through threats may have been justly due him”]; Gomez v. Garcia (9th Cir. 1996)
81 F.3d 95, 97 [“The law of California was established in 1918 that belief that the
victim owes a debt is not a defense to the crime of extortion”].)
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) 188 Cal. 744, 756; People v. Goldstein (1948) 84
Cal.App.2d 581, 587; People v. Hasselink (1985) 167 Cal.App.3d 781, 787.)
Furthermore, the crime with which the extortionist threatens his or her victim need
not be a specific crime. “[T]he accusations need only be such as to put the
intended victim of the extortion in fear of being accused of some crime. The more
33
vague and general the terms of the accusation the better it would subserve the
purpose of the accuser in magnifying the fears of his victim, and the better also it
would serve to protect him in the event of the failure to accomplish his extortion
and of a prosecution for his attempted crime.” (People v. Sanders, supra, at pp.
749-750; People v. Massengale (1968) 261 Cal.App.2d 758, 764-765.)
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.” (Cal. Rules of Prof. Conduct, rule 5-
100(A).)14
In
Librarian v. State Bar (1952) 38 Cal.2d 328, we upheld disciplinary
action against Librarian who, after losing at trial, sent a letter to opposing counsel,
accusing his opponent’s client of perjury and threatening to use the perjury charge
as the basis of a new trial motion and a criminal complaint unless opposing
counsel’s client paid Librarian’s client. “Although no action was taken either by
Librarian or Siegel to prosecute Nadel, the record clearly shows conduct which is
in violation of Librarian’s oath and duties as an attorney. The threats contained in
the letter indicate an attempt to commit extortion. The sending of a threatening
letter with intent to extort money is ‘punishable in the same manner as if such
money . . . were actually obtained’ (Pen. Code, § 523) and the crime of extortion
involves moral turpitude.” (Id. at pp. 329-330; Barton v. State Bar (1935) 2
Cal.2d 294, 297 [The conduct of an attorney who threatened an oil company with
14
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 of Prof. Conduct, rule
1.2(e).)
34
reporting adulteration of its gasoline to the prosecutor unless it paid his clients was
not only grounds for disbarment but “constituted an attempt to extort money as
said crime is defined in sections 518, 519 and 524 of the Penal Code”]; State v.
Herrington (Vt. 1969) 260 A.2d 692, 699 [attorney’s suggestion in letter
demanding $175,000 settlement in divorce case that he might advise his client to
report husband to Internal Revenue Service and United States Custom Service
constituted “veiled threats [that] exceeded the limits of respondent’s representation
of his client in the divorce action” and supported attorney’s extortion conviction].)
As these cases illustrate, a threat that constitutes criminal extortion is not cleansed
of its illegality merely because it is laundered by transmission through the offices
of an attorney. Bearing these principles in mind, we turn to the instant case.
3. Application
Extortion is not a constitutionally protected form of speech. (R.A.V. v. City
of St. Paul (1992) 505 U.S. 377, 420 (conc. opn. of Stevens, J.) [“Although the
First Amendment broadly protects ‘speech,’ it does not protect the right to . . .
‘extort’ ”]; United States v. Quinn (5th Cir. 1975) 514 F.2d 1250, 1268 [“It may
categorically be stated that extortionate speech has no more constitutional
protection than that uttered by a robber while ordering his victim to hand over the
money, which is no protection at all”].) The purpose of the anti-SLAPP statute, of
course, is to protect “the valid exercise of the constitutional rights of speech and
petition for the redress of grievances.” (§ 425.16, subd. (a).) Flatley argues that
the letter Mauro sent on behalf of Robertson, and his subsequent telephone calls to
Flatley’s attorneys, constituted extortion as a matter of law and, therefore, the trial
court correctly dismissed Mauro’s motion to strike Flatley’s action as a SLAPP.
(Paul, supra, 85 Cal.App.4th at pp. 1366-1367.) Mauro maintains that his activity
on behalf of Robertson amounted to no more than the kind of permissible
settlement negotiations that are attendant upon any legal dispute or, at minimum,
35
that a question of fact exists regarding the legality of his conduct precluding a
finding that it was illegal as a matter of law. We review the question de novo.
(Soukup v. Hafif, supra, ___ Cal.4th at p. ____, fn. 3 [p. 3, fn. 3].)
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 strike. We
may therefore view this evidence as uncontroverted. (See State v. Herrington,
supra, 260 A.2d at p. 699 [“The acts which he performed and the words that he
wrote are established by direct and documentary evidence that is not
contradicted.”].)
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 follow-up 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
36
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 deadline and “I
know the tour dates; I am not kidding about this it will be publicized every place
he [Mr. Flatley] goes for the rest of his life,” and that dissemination of the story
“would be immediate to any place where he and the troupes are performing
everywhere in the world.” The very next day, January 10, Mauro called Brandon
again and, after leaving a message threatening to “go[] public” if Brandon did not
return his call within a half-hour, 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 8:00 p.m. Central
Standard Time that night from a representative of Mr. Flatley with authority, 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 [Mr. Flatley] at every single place he
tours.’ ”
37
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’ 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. (Librarian v. State Bar, supra 38 Cal.2d at pp. 329-330; State v.
Harrington, supra, 260 A.2d at p. 699.)
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, 84 Cal.App.2d at p. 587 [For purposes of extortion, “[a] false
accusation of crime is often as harmful as one that is true”].) Moreover, the threat
to disclose criminal activity entirely unrelated to any alleged injury suffered by
38
Mauro’s client “exceeded the limits of respondent’s representation of his client”
and is itself evidence of extortion. (State v. Herrington, supra, 260 A.2d at p. 699
[attorney’s veiled threat to have his client in a divorce action inform on her
husband to the Internal Revenue Service and Bureau of Immigration and
Naturalization supports attorney’s conviction of extortion].) That Mauro did not
specify these other criminal offenses is of no import — “the accusations need only
be such as to put the intended victim of the extortion in fear of being accused of
some crime.” (People v. Sanders, supra, 188 Cal. at p. 749.) Indeed, the very
vagueness of the accusation serves the dual purpose of “magnifying the fear of his
victim” and “protect[ing]” the extortionist “in the event of the failure to
accomplish his extortion and . . . prosecution.” (People v. Massengale, supra, 261
Cal.App.2d at p. 765.)
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.”15
15
We also observe that Mauro did not submit any declarations in support of
his motion to strike that verified that a rape actually occurred.
39
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 Mauro’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 more ominous and the need to “settle” with Robertson and
Mauro all the more urgent. Under these circumstances, the fact that Robertson
may have made some report to the police did not render her threat to publicly
accuse Flatley of rape unless he paid her and Mauro any less extortionate. (People
v. Umana (2006) 138 Cal.App.4th 625, 640 [“Although section 519, subdivision 2,
speaks in terms of accusing the victim of a crime, there is no reasonable basis for
drawing a distinction between the initial accusation of a crime and continued
pursuit of a criminal charge”].)
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
40
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 follow-
up 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” Flatley 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
523.16
16
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, 218 Cal.App.3d at p. 1079 [“a person, generally speaking, has a
perfect right to prosecute a lawsuit in good faith, or to provide information to the
newspapers”].) Nor is extortion committed by an employee who threatens to
report the illegal conduct of his or her employer unless the employer desists from
(footnote continued on next page)
41
Accordingly, because the activity forming the basis of Mauro’s motion to
strike Flatley’s action was extortion as a matter of law and, therefore, not
constitutionally protected activity for purposes of section 426.15, we further
conclude that the trial court did not err when it denied Mauro’s motion to strike.
III. DISPOSITION
The judgment of the Court of Appeal is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
CHIN,
J.
CORRIGAN,
J.
(footnote continued from previous page)
that conduct. In short, our discussion of what extortion as a matter of law is
limited to the specific facts of this case.
42
CONCURRING OPINION BY WERDEGAR, J.
I agree with the majority that defendant does not enjoy the protection of the
anti-SLAPP statute. (Code Civ. Proc., § 425.16.)1 I therefore concur in the
judgment affirming the Court of Appeal. In moving to strike this action, it was
defendant’s initial burden to demonstrate the anti-SLAPP statute’s applicability by
showing the lawsuit arises from protected speech or petitioning. (Id., subds.
(b)(1), (e); Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) This he failed to do.
Insofar as the gravamen of plaintiff’s claim is that defendant attempted to extort
money from him by threatening, through “various kinds of opprobrium” (maj.
opn., ante, at p. 40), to ruin plaintiff’s reputation and encourage prosecutorial
authorities to pursue plaintiff (see especially id. at pp. 8-10, 37-41), the action
does not arise from protected speech and petitioning.
The majority opinion details plaintiff’s evidentiary submissions opposing
defendant’s anti-SLAPP motion. (Maj. opn., ante, at pp. 4-10.) 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
1
Unlabeled section references are to the Code of Civil Procedure.
1
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 prosecution” for rape. As the majority points out,
defendant’s scheme included threats “that if [plaintiff] did not pay an acceptable
amount, he . . . would ‘go public’ ” and “would ensure that the story would follow
[plaintiff] . . . and would ‘ruin’ him.” (Maj. opn., ante, at p. 10.) That plaintiff
alleges the extortion scheme also included threats to sue (id. at pp. 5-8) does not
necessarily mean the action “arises from” defendant’s litigation-related activities.
(Kajima Engineering & Construction, Inc. (2002) 95 Cal.App.4th 921, 930-931
[mere presence of allegations in city’s cross-complaint that contractor extorted
money, inter alia, by filing or threatening lawsuits did not render it a SLAPP].)
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. 31-41),
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) 19
Cal.4th 1106, 1123; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056;
Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Accordingly,
the trial court properly denied defendant’s anti-SLAPP motion.
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. 11-31.)
Although the Legislature has embraced the concept of “illegal as a matter of law”
2
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) 29
Cal.4th 82, 93.) Accordingly, we have rejected, as contrary to the legislative
design (id. at p. 94), any suggestion that in order to invoke the special motion to
strike, i.e., to satisfy the statute’s first prong, a “defendant must first establish her
actions are constitutionally protected under the First Amendment as a matter of
law” (id. at p. 95). I realize the majority’s new exception does not go that far.
Nevertheless, in adding to the burdens of defendants who seek anti-SLAPP
protection the requirement that they first resist, on the merits, a plaintiff’s assertion
that the conduct they are being sued for was “illegal as a matter of law” (maj. opn.,
ante, at pp. 23-24), the majority moves in that direction. Since by definition all
conduct sued upon is alleged to be illegal, the majority’s assurances that the
“narrow circumstance” (maj. opn., ante, at p. 16; see also id. at p. 17) for
plaintiffs’ invoking an illegal-as-a-matter-of-law defense to an anti-SLAPP motion
will occur only in “rare cases” (id. at p. 23) are not convincing.2
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 preliminary, and unrelated to the second
2
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. 41, fn. 16), the majority has invoked a principle easily
“limited to the specific facts of this case” (id. at p. 42).
3
prong question of whether the plaintiff has demonstrated a probability of
prevailing” (maj. opn., ante, at p. 24), 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.3 The similarity may well sow doctrinal confusion
among courts previously given to understand that “any ‘claimed illegitimacy of
the defendant’s acts is an issue which the plaintiff must raise and support in the
context of the discharge of the plaintiff’s [secondary] burden to provide a prima
facie showing of the merits of the plaintiff's case.’ ” (Navellier v. Sletten, supra,
29 Cal.4th at p. 94.)4
3
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.” ’ ” (Maj. opn., ante, at pp. 31-32.) In Wilson v. Parker, Covert &
Chidester, supra, 28 Cal.4th at page 821, we cited the same subdivision in
articulating the standard for deciding the second-prong question of potential merit:
“[T]he trial court considers the pleadings and evidentiary submissions of both the
plaintiff and the defendant . . . ; though the court does not weigh the credibility or
comparative probative strength of competing evidence, it should grant the motion
if, as a matter of law, the defendant’s evidence supporting the motion defeats the
plaintiff’s attempt to establish evidentiary support for the claim.”
4
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
(footnote continued on next page)
4
As the majority points out, “[o]ur concern for effectuating the legislative
intent as demonstrated by the plain language of the [anti-SLAPP] statute has led us
to reject attempts to read into section 425.16 requirements not explicitly contained
in that language.” (Maj. opn., ante, at p. 12.) For the reasons stated, I believe the
majority’s departure from that course in the present case is unwise.5
WERDEGAR, J.
(footnote continued from previous page)
conduct constitutes extortion as a matter of law. (See maj. opn., ante, at p. 41.)
The majority does not address the point.
5
The majority relies principally on Paul for Council v. Hanyecz (2001) 85
Cal.App.4th 1356, which we disapproved on other grounds in Equilon Enterprises
v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, footnote 5. But as the majority
acknowledges, Paul involved “ ‘a factual context in which defendants . . .
effectively conceded the illegal nature of their . . . activities for which they [were
sued]. Thus, there was no dispute on that point and [the Court of Appeal there]
concluded, as a matter of law, that such activities are not a valid exercise of
constitutional rights as contemplated by section 425.16.’ ” (Maj. opn., ante, at
pp. 16-17, quoting Paul, at p. 1367.) Moreover, the court in Paul was careful to
note that, “had there been a factual dispute as to the legality of defendants’ actions,
then [the court] could not so easily have disposed of defendants’ motion.” (Paul,
at p. 1367.) Here, of course, there indeed exists a factual dispute as to the legality
of defendant’s actions. (See maj. opn., ante, at p. 4.)
5
APPENDIX A
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Flatley v. Mauro
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 121 Cal.App.4th 1523
Rehearing Granted
__________________________________________________________________________________
Opinion No. S128429
Date Filed: July 27, 2006
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Richard C. Hubbell
__________________________________________________________________________________
Attorneys for Appellant:
Sedgwick, Detert, Moran & Arnold, James J. S. Holmes, Christina J. Imre, Douglas J. Collodel, Orly
Degani and Wendy L. Wilcox for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Greenberg Glusker Fields Claman Machtinger & Kinsella, Bertram Fields and Ricardo P. Cestero for
Plaintiff and Respondent.
Levy, Ram & Olson, Karl Olson, Erica L. Craven; Thomas W. Newton; Karlene W. Goller; Harold W.
Fuson, Jr.; Stephen J. Burns; Levine Sullivan Koch & Schulz and James E. Grossberg for California
Newspaper Publishers Association, Los Angeles Times, The Copley Press, Inc., McClatchy Newspapers,
Inc., and the Orange County Register as Amici Curiae.
Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Theodora Berger,
Assistant Attorney General, Richard M. Frank, Edward G. Weil and Susan S. Fiering, Deputy Attorneys
General, as Amici Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Christina J. Imre
Sedgwick, Detert, Moran & Arnold
801 South Figueroa Street, 18th Floor
Los Angeles, CA 90017-5556
(213) 426-6900
Bertram Fields
Greenberg Glusker Fields Claman Machtinger & Kinsella
1900 Avenue of the Stars, Suite 2100
Los Angeles, CA 90067
(310) 553-3610
Opinion Information
| Date: | Docket Number: |
| Thu, 07/27/2006 | S128429 |
Parties
| 1 | Mauro, D. Dean (Defendant and Appellant) Represented by Orly Degani Sedgwick, Detert, Moran & Arnold, LLP 801 S. Figueroa Street, 18th Floor Los Angeles, CA |
| 2 | Mauro, D. Dean (Defendant and Appellant) Represented by Christina J. Imre Sedgwick, Detert, Moran & Arnold, LLP 801 S. Figueroa Street, 18th Floor Los Angeles, CA |
| 3 | Flatley, Michael (Plaintiff and Respondent) Represented by Bertram Fields Greenberg Glusker et al. 1900 Avenue of the Stars, Suite 2000 Los Angeles, CA |
| 4 | California Newspaper Publishers Association (Amicus curiae) Represented by Stephen J. Burns The McClatchy Company 2100 "Q" Street Sacramento, CA |
| 5 | California Newspaper Publishers Association (Amicus curiae) Represented by Harold W. Fuson Copley Press, Inc. 7776 Ivanhoe Avenue La Jolla, CA |
| 6 | California Newspaper Publishers Association (Amicus curiae) Represented by Karlene W. Goller Los Angeles Times 202 W. First Street Los Angeles, CA |
| 7 | California Newspaper Publishers Association (Amicus curiae) Represented by James E. Grossberg Levine Sullivan & Koch, LLP 1041 Skyline Drive Laguna Beach, CA |
| 8 | California Newspaper Publishers Association (Amicus curiae) Represented by Thomas Ward Newton California Newspaper Publishers Association (CNPA) 1225 Eighth Street, Suite 260 Sacramento, CA |
| 9 | California Newspaper Publishers Association (Amicus curiae) Represented by Karl Olson Levy Ram & Olson, LLP 639 Front Street, Suite 400 San Francisco, CA |
| 10 | Lockyer, Bill (Amicus curiae) Represented by Susan S. Fiering Office of the Attorney General P.O. Box 70550 Oakland, CA |
| Disposition | |
| Jul 27 2006 | Opinion: Affirmed |
| Dockets | |
| Oct 12 2004 | Petition for review filed appellant D. Dean Mauro |
| Oct 14 2004 | Received Court of Appeal record |
| Oct 29 2004 | Answer to petition for review filed respondent Michael Flatley |
| Nov 9 2004 | Reply to answer to petition filed by aplt (40k) |
| Dec 2 2004 | Time extended to grant or deny review to Jan. 10, 2005. |
| Dec 15 2004 | Petition for review granted (civil case) Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, Brown, and Moreno, JJ. |
| Dec 20 2004 | Certification of interested entities or persons filed |
| Dec 23 2004 | Certification of interested entities or persons filed by counsel for aplt |
| Jan 10 2005 | Request for extension of time filed by aplt for filing of the opening brief on the merits, to 2/14 |
| Jan 13 2005 | Extension of time granted to 2-14-05 for aplt to file the opening brief on the merits. |
| Feb 15 2005 | Opening brief on the merits filed by aplt (40.1b) |
| Mar 15 2005 | Answer brief on the merits filed respondent, Michael Flatley |
| Apr 5 2005 | Received: aplt's oversize reply brief with application for permission |
| Apr 7 2005 | Reply brief filed (case fully briefed) by aplt Mauro (oversize brief filed with permission of court) |
| May 9 2005 | Received application to file Amicus Curiae Brief and brief of California Newspaper Publishers Association, et al. (party supported not mentioned). |
| May 16 2005 | Permission to file amicus curiae brief granted The application of California Newspaper Publishers et al., for permission to file an amicus curiae brief is hereby granted. An answer thereto may be served and filed by any party within twenty days of the filing of the brief. |
| May 16 2005 | Amicus curiae brief filed California Newspaper Publishers Association, Los Angeles times, The Copley Press, Inc., McClatchy Newspapers, Inc. and the Orange County Register |
| Jun 6 2005 | Response to amicus curiae brief filed by respondent MICHAEL FLATLEY to a/c brief of CALIF. NEWSPAPER PUBLISHERS, et al. |
| Jun 6 2005 | Request for judicial notice filed (granted case) by counsel for respondent MICHAEL FLATLEY |
| Jun 13 2005 | Received application to file Amicus Curiae Brief (application for late filing) by the California Attorney General. Also received request for judicial notice. |
| Jun 16 2005 | Permission to file amicus curiae brief granted by the Attorney General of Calif. Answers may be filed w/in 20 days. |
| Jun 16 2005 | Amicus curiae brief filed by Calif. Attorney General |
| Jun 16 2005 | Request for judicial notice filed (granted case) by A/C Calif Attorney General |
| Jun 17 2005 | Opposition filed by aplt Mauro tp the requests for judicial noticefiled by Resp Flatley and A/C Atty. General |
| Jul 7 2005 | Response to amicus curiae brief filed by appellant to the A/C brief of the Calif. Atty. Gen. (40.1b) |
| Nov 2 2005 | Supplemental briefing ordered The court requests the parties to file supplemental briefs directed to the following questions: (1) Should newly-enacted Code of Civil Procedure section 425.18 be applied retroactively to pending cases? (2) If so, what is the effect of Code of Civil Procedure section 425.18 on the issue on which this court granted review in this case, particularly with respect to subdivision (h) of that statute which states: "A special motion to strike may not be filed against a SLAPPback by a party whose filing or maintenance of the prior cause of action from which the SLAPPback arises was illegal as a matter of law"? Both parties may file simultaneous letter briefs on the questions presented above on or before December 2, 2005, and each may file an additional letter brief in response on or before December 16, 2005. No further extensions of time for the filing of these briefs are contemplated by the Court. |
| Dec 2 2005 | Supplemental brief filed (letter brief per court's request) on behalf of Michael Flatley, respondent. |
| Dec 2 2005 | Supplemental brief filed (letter brief per court's request) on behalf of R. Dean Mauro, appellant |
| Dec 5 2005 | Received: |
| Dec 5 2005 | Filed: Notice of Errata re Respondent's Supplemental Letter Brief, respondent Michael Flatley |
| Dec 15 2005 | Supplemental brief filed Respondent Michael Flatley's reply to the letter filed by appellant (D. Dean Mauro) |
| Dec 16 2005 | Supplemental brief filed appellant D. Dean Mauro reply to supplemental letter brief of Michael Flatley, respondent |
| May 2 2006 | Case ordered on calendar May 31, 2006, at 1:30 p.m., in San Francisco |
| May 25 2006 | Received: letter from appellant ( Mauro) regarding additional authorities. by counsel, Christina J. Imre. |
| May 31 2006 | Cause argued and submitted |
| Jul 27 2006 | Opinion filed: Judgment affirmed in full Opinion by Moreno, J. -----joined by George, C.J., Kennard, Baxter, Chin & Corrigan, JJ. Concurring Opinion by Werdegar, J. |
| Aug 30 2006 | Remittitur issued (civil case) |
| Sep 12 2006 | Received: receipt for remittitur |
| Briefs | |
| Feb 15 2005 | Opening brief on the merits filed |
| Mar 15 2005 | Answer brief on the merits filed |
| Apr 7 2005 | Reply brief filed (case fully briefed) |
| May 16 2005 | Amicus curiae brief filed |
| Jun 6 2005 | Response to amicus curiae brief filed |
| Jun 16 2005 | Amicus curiae brief filed |
| Jul 7 2005 | Response to amicus curiae brief filed |
