SLAPP suit cannot be used by defendant to protect speech that was illegal as matter of law

In Flatley v. Mauro, (2006) 39 C.4th 299, 46 C.R.3d 606, 139 P.3d 2, plaintiff entertainer brought an action against defendant attorney for civil extortion, intentional infliction of emotional distress, and wrongful interference with economic advantage. The action was based on a letter and phone calls in which defendant demanded a seven-figure payment to settle claims that plaintiff had raped defendant’s client. Defendant filed a motion to strike the complaint as a SLAPP suit. The trial court denied the motion. The Court of Appeal held that the anti-SLAPP statute did not apply because defendant’s demands constituted criminal extortion as a matter of law, which were not protected by constitutional guarantees of free speech and petition. Held, affirmed.

(a) The purpose of the anti-SLAPP statute, C.C.P. 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.” (39 C.4th 313.) A necessary corollary to this statement is that not all speech or petition activity is protected by the statute. Hence, the scope of the statute is not without limits. (39 C.4th 313.)

(b) Paul for Council v. Hanyecz (2001) 85 C.A.4th 1356, 102 C.R.2d 864, disapproved on other grounds in Equilon Enterprises v. Consumer Cause (2002) 29 C.4th 53, 124 C.R.2d 507, 52 P.3d 685, 5 Cal. Proc. (4th), Pleading, Supp., §963, is dispositive of the issue raised here. C.C.P. 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.” (39 C.4th 317.) “[W]here 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” its purpose to prevent and deter lawsuits brought primarily to chill the valid exercise of free speech and petition rights. (39 C.4th 316.)

(c) Even if the litigation privilege, C.C. 47(b), were to protect all prelitigation related communications, “they are nonetheless not protected under the anti-SLAPP statute.” (39 C.4th 322.) The litigation privilege and the anti-SLAPP statute, though related, “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” prelitigation threats constituting extortion. (39 C.4th 322.)

(d) Here, defendant’s conduct constituted extortion as a matter of law. (39 C.4th 330) Defendant’s letter and follow-up phone calls threatened to publicly accuse plaintiff of rape and other specified violations of law unless he “settled” by paying a minimum of $1 million, of which defendant would receive 40%. Defendant's letter also warned that a public record would subject plaintiff to scrutiny by the Internal Revenue Service and other U.S. and British agencies and by the “media worldwide.” (39 C.4th 330.) Defendant threatened that he knew of plaintiff’s tour dates and that he would publicize the rape story every place plaintiff goes “for the rest of his life.” (39 C.4th 330.) “That the threats were half-couched in legalese did not disguise their essential character as extortion.” (39 C.4th 330.)

Witkin References:

For discussion of anti-SLAPP statute generally, see 5 Cal. Proc. (4th), Pleading, §962.

For cases illustrating when statute does not apply, see 5 Cal. Proc. (4th), Pleading, Supp., §962B.