Friday, September 3, 2004
Court of Appeal Rules:
Suit Against Lawyer Over Alleged Extortion Attempt Not SLAPP
By KENNETH OFGANG, Staff Writer/Appellate Courts
Staff Writer/Appellate Courts
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 no constitutional protection from being sued by his target, this district’s Court of Appeal said yesterday.
Div. Five 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.”
Content of Letter
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. Mauro told reporters his client intended to sue in Nevada, but no such suit appears to have been filed.
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. The secretary swore that he was present, occupying the other bedroom of the hotel suite on the night of the alleged rape; that Robertson put her things in Flatley’s bedroom and entered it of her own volition; that he heard no screaming, crying, or other loud noises from the bedroom; and that he saw an apparently happy Robertson kiss Flatley before leaving the next morning.
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.
Turner, writing for the Court of Appeal, agreed.
Mauro’s conduct went beyond the limits of a bona fide attempt to resolve a dispute in good faith, Turner said, when the attorney “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.”
An offer of silence about alleged criminal activity in exchange for the payment of money is extortion under California law, Turner declared. In addition, he explained, codes of ethics for both Illinois and California lawyers prohibit the threatened initiation of criminal prosecution as means of obtaining leverage in a civil action.
Since the defendants failed to show that the suit was a result of protected activity, the presiding justice said, the burden did not shift to the plaintiff to show that he was likely to prevail in the suit. “But we do note that plaintiff’s unequivocal under oath denial that Ms. Robertson was sexually assaulted is unrebutted in this court,” Turner wrote.
The case was argued in the Court of Appeal by Fields, of Greenberg Glusker Fields Claman Machtinger & Kinsella, for the plaintiff and by Douglas J. Collodel of Sedgick, Detert, Moran & Arnold for Mauro.
The case is Flatley v. Mauro, 04 S.O.S. 4883.
Copyright 2004, Metropolitan News Company