Friday, July 28, 2006
Suit Against Lawyer Alleging Extortion Attempt Not SLAPP—S.C.
By KENNETH OFGANG, Staff Writer
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, the state Supreme Court ruled yesterday.
In one of two cases decided yesterday that dealt with the scope of the anti-SLAPP statute, specifically as applied to suits against lawyers, the state Supreme Court unanimously ruled that Michael Flatley may sue D. Dean Mauro, a Waukegan, Ill. attorney who sued Flatley on behalf of a woman with whom Flatley spent time in his Las Vegas hotel suite four years ago.
Mauro’s communications with Flatley and his attorney, Justice Carlos Moreno wrote, constituted “criminal extortion as a matter of law,” not protected speech. The high court upheld prior rulings by since-retired Los Angeles Superior Court Judge Richard Hubbell and Div. Five of this district’s Court of Appeal allowing Flatley to proceed with the suit he filed in 2004.
Flatley starred in the Irish dance spectacular “Riverdance,” created the highly successful musical “Lord of the Dance” and the touring show “Feet of Flames,” and most recently toured in “Celtic Tiger,” an interpretation of Irish history fusing different styles of music and dance. His personal fortune has been estimated in the European press at more than $800 million.
Flatley acknowledges that he spent time with Tyna Marie Robertson in Las Vegas 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. No charges were filed, and a police spokesperson told a reporter that Robertson had refused to cooperate in the investigation.
Two months later, in January 2003, 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. Mauro told reporters his client intended to sue in Nevada, but no such suit appears to have been filed.
Robertson, represented by different attorneys, has been more recently involved in litigation with Chicago Bears star Brian Urlacher, shown by genetic testing to have fathered Robertson’s child last year.
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.
Moreno, writing for the high court agreed.
Mauro’s conduct went beyond the limits of a bona fide attempt to resolve a dispute in good faith, the justice said, because an offer of silence about alleged criminal activity in exchange for the payment of money is extortion under California law. “Attorneys are not exempt from these principles in their professional conduct,” the justice said, citing a State Bar rule that says lawyers shall not “threaten to present criminal, administration, or disciplinary charges to obtain an advantage in a civil dispute.”
Moreno’s opinion was joined by Chief Justice Ronald M. George and Justices Joyce L. Kennard, Marvin Baxter, Ming Chin, and Carol Corrigan.
Justice Kathryn M. Werdegar concurred separately. She agreed that Mauro did not engage in protected speech, and said that Flatley had established a probability of winning at trial, which would defeat an anti-SLAPP motion in any event.
The dissenting jurist argued, however, that the majority had created an unnecessary exception to the statute. Activity that is “illegal as a matter of law” might nonetheless arise from the exercise of constitutional rights, she explained, yet would lose the protection of the anti-SLAPP statute under the decision.
The case was argued in the Supreme Court by Bertram Fields, of Greenberg Glusker Fields Claman Machtinger & Kinsella, for the plaintiff and by Christina J. Imre of Sedgwick, Detert, Moran & Arnold for Mauro. Attorney General Bill Lockyer and the California Newspaper Publishers Association, as well as the Los Angeles Times and other newspapers, supported Flatley in amicus briefs.
The case is Flatley v. Mauro, 06 S.O.S. 3905.
Copyright 2006, Metropolitan News Company