Thursday, December 16, 2004
S.C. Agrees to Decide if Suit Over Settlement Demand Is SLAPP
Justices to Rule on Whether Letter Described by C.A. as Extortion Attempt Is Constitutionally Protected
By KENNETH OFGANG, Staff Writer/Appellate Courts
The California Supreme Court yesterday agreed to decide whether an attorney who threatened to sue an entertainment celebrity on behalf of a woman who claimed she was raped, and to disseminate information about the case if the claim was not settled, has constitutional protection from being sued by his target.
The justices, at their weekly conference in San Francisco, unanimously granted review of the September ruling of this district’s Div. Five in Flatley v. Mauro, B171570.
The appellate panel affirmed Los Angeles Superior Court Judge Richard Hubbell’s denial of a motion to strike Michael Flatley’s complaint against D. Dean Mauro, a Waukegan, Ill. attorney who sued Flatley on behalf of Tyna Marie Robertson.
“The trial court properly ruled the pre-litigation attempt to extort money in exchange for silence is not the proper subject of a special motion to strike” under the anti-SLAPP law, Presiding Justice Paul A. Turner wrote for the court.
Flatley starred in the Irish dance spectacular “Riverdance,” created the highly successful musical “Lord of the Dance,” and is presently putting together another show. “Lord of the Dance” closed its Las Vegas run in April, but two troupes will be touring Europe and Asia and a third will perform throughout the United States in the coming months.
Flatley’s personal fortune has been estimated in the European press at more than $800 million.
Flatley acknowledges that he spent time with Robertson in Las Vegas two years ago, and that the two had sex in his suite at the Venetian Hotel. But the encounter was entirely consensual, and Robertson kissed him the next morning and said she had to leave for the airport but hoped to see him again, Flatley said.
Robertson called the Las Vegas police about 25 days after the encounter and told them she had been raped. Police filed no charges.
Two months later, in January of last year, Mauro sent a letter to Flatley’s representative containing a draft of a complaint, to be filed in Illinois, accusing Flatley of “forcible sexual assault.”
The letter expressed an intent to attempt “to amicably resolve this claim,” but said that if that did not occur, there would be an “in-depth investigation into” Flatley’s assets, business arrangements and “future engagements”; that the information would be filed with the court and become a matter of public record; that “the media worldwide will enjoy what they find”; that information would be “turned over to any and all appropriate authorities”; and that press releases would be sent to news media and posted on the Internet.
Two months later, Mauro filed a Circuit Court suit in Illinois and described the alleged rape to reporters.
Flatley filed suit in Los Angeles Superior Court two days later, alleging that Mauro and Robertson had, in their letter, on television, and in communications between Mauro and Flatley’s Century City attorney, Bertram Fields, committed extortion, intentional infliction of emotional distress, defamation, fraud, and wrongful interference with business relations.
The Illinois suit was withdrawn after the judge there questioned whether Flatley could be sued under the state’s long-arm jurisdiction for acts that allegedly occurred in another state.
In his anti-SLAPP motion, Mauro claimed that his client had a bona fide claim and that his efforts to obtain a settlement on her behalf were protected by the First Amendment and the litigation privilege codified at Civil Code Sec. 47(b).
In response, Fields submitted a declaration by Flatley denying the allegations, along with a declaration by the entertainer’s private secretary verifying Flatley’s account.
Fields also submitted his own declaration relating a phone conversation in which Mauro allegedly threatened to play “hardball” and to “go public,” disseminating the rape tale in every city where Flatley or his troupes appeared, unless Flatley paid his client “seven figures.”
Hubbell, denying the motion to strike, said the anti-SLAPP law does not protect threats to initiate criminal prosecution or to publish false allegations, and the Court of Appeal agreed.
Turner, writing for the Court of Appeal, said the Illinois lawyer “went beyond the limits of a bona fide attempt to resolve a dispute in good faith” when he “threatened criminal prosecution or publication of defamatory matter about the rape as a means of obtaining leverage in the proposed civil action if ‘seven figures’ was not paid.”
In other action at yesterday’s conference, the justices:
•Left standing a Court of Appeal ruling from this district rejecting a teacher’s claim that the Los Angeles Unified School District violated her free-speech rights by not renewing her contract.
Amitis Motevalli won a $425,000 verdict against the district, claiming it terminated her employment because she told her students to leave the classroom rather than submit to searches by district “scan teams.” Random weapons searches are conducted at every secondary school in the district under a policy in effect since 1993.
But Div. Three held that the claim should not have gone to the jury. The constitutional issue should never have been reached, the Presiding Justice Joan Dempsey Klein wrote, because Tameny v. Atlantic Richfield Co. (1980) 27 Cal.3d 167, which recognized the tort of wrongful termination in violation of public policy, does not create a cause of action for “tortious nonrenewal of an employment contract in violation of public policy.”
Motevalli, who taught art and art history at Locke High School in Watts, was hired under an emergency credential in 1999, and later accepted a contract as a provisional teacher, expiring June 30, 2000. The contract contained a clause pursuant to which the teacher agreed that the contract could “be cancelled at anytime without cause at the discretion of the District.”
The contract was later renewed for an additional year, expired June 30, 2001. Motevalli was cited by the school’s principal in March 2001 for her “unsatisfactory act” of interfering with the scan team—it was the second such incident in which she was involved—and jeopardizing student safety by discouraging her students from cooperating with officials and telling them to leave the classroom, knowing they would then be in the halls without supervision.
Such a notice, when issued to a provisional teacher, normally results in non-renewal of the employee’s contract.
The case is Motevalli v. Los Angeles Unified School District, B165380.
•Agreed to decide whether an employee bonus plan based on a profit figure that is reduced by a store’s expenses, including the cost of workers compensation insurance and cash and inventory losses violates state laws prohibiting those costs from being passed on to employees.
The Court of Appeal for this district, in Prachasaisoradej v. Ralphs Grocery Company, said a complaint alleging that the plan violated the unfair competition law and several Labor Code sections stated a cause of action. The high court order left standing the appellate panel’s ruling that the action was not preempted by federal labor laws
•Agreed to decide whether a person who otherwise satisfies the requirements of Probate Code Sec. 6110 as a witness to the execution of a will may fulfill the signature requirement after the testator’s death. this district’s Div. Four answered the question in the affirmative in Estate of Sauressig. B167907.
•Agreed to decide whether the law prohibiting possession of a short-barreled rifle includes a scienter element. The First District’s Div. Five said that it does, that prosecutor’s bear the burden of proving a defendant knew or reasonably should have known that his or her firearm possessed the characteristics of a short-barreled rifle, and that failure to so instruct a jury constitutes error.
The case, People v. King, A104219, was decided in an unpublished opinion.
Copyright 2004, Metropolitan News Company