Wednesday, April 24, 2013
Court of Appeal Upholds Denial of Lawyer’s Anti-SLAPP Motion
Demand Letter Characterized as ‘Extortion’ Not Protected by Statute, Panel Says
By KENNETH OFGANG, Staff Writer
An attorney’s demand letter—which threatened opposing counsel’s client with all sorts of dire consequences if the sender’s settlement demands were not met—constituted “criminal extortion” and was not protected by the anti-SLAPP statute, the Court of Appeal for this district has ruled.
Div. One Monday affirmed an order by Los Angeles Superior Court Judge Mary Ann Murphy, denying Reed Hamzeh’s motion to strike the complaint brought by Miguel Mendoza. The court also upheld an award to Mendoza of more than $3,000 in attorney fees.
The lawsuit arose from a May 2009 letter sent by Hamzeh to a lawyer representing Mendoza, the former manager of Media Print & Copy in Burbank. Hamzeh was representing Guy Chow, the owner of the business.
The letter identified Hamzeh as Chow’s attorney and said he was “in the process of uncovering the substantial fraud, conversion and breaches of contract that your client has committed on my client” and alleged more than $75,000 in damages. It warned that if Mendoza did not “provide us with a repayment of such damages caused,” Hamzeh and his client would sue, and would also report Mendoza “to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, the Better Business Bureau, as well as to customers and vendors.”
Emotional Distress Claim
Mendoza sued Hamzeh for civil extortion, intentional infliction of emotional distress, and unfair business practices. Hamzeh responded with an anti-SLAPP motion, alleging that the complaint implicated his free speech rights and that Mendoza could not prevail on the merits because his claims were barred by the litigation and common interest privileges.
Mendoza’s lawyer sent Hamzeh’s lawyer a letter, urging him to withdraw the motion based on Flatley v. Mauro (2006) 39 Cal.4th 299.
The defendant in that case was an Illinois lawyer who threatened to sue “Lord of the Dance” star Michael Flatley on behalf of a woman who claimed she was raped, and to disseminate information about the case if the claim was not settled. The high court said the defendant had no constitutional protection from being sued because he had committed “criminal extortion as a matter of law.”
Mendoza’s lawyer said there was “little doubt that Mr. Hamzeh committed extortion” by making the threats contained in the demand letter.
More than 40 days later, with the anti-SLAPP motion still pending, Mendoza’s counsel filed his opposition and request for attorney fees. Hamzeh replied that Flatley did not apply because there was no crime committed.
Murphy ruled that Flatley was controlling and denied the motion to strike. Justice Victoria G. Chaney, writing for the Court of Appeal, said Murphy was correct.
While the defendant’s conduct in Flatley was more egregious, Hamzeh’s threats still constituted extortion, Chaney said, explaining:
“The threat to report a crime may constitute extortion even if the victim did in fact commit a crime. The threat to report a crime may in and of itself be legal. But when the threat to report a crime is coupled with a demand for money, the threat becomes illegal, regardless of whether the victim in fact owed the money demanded.”
Fee Award Upheld
In an unpublished portion of the opinion, Chaney agreed with the trial judge that Hamzeh’s motion was frivolous or intended to cause unnecessary delay, meeting the requirements for an award of attorney fees to a plaintiff for defending an anti-SLAPP motion. She noted that Flatley was brought to Hamzeh’s attention more than a month before the motion was made, and said there was no merit to his argument that the case did not apply, given the similarity of the facts.
Attorneys on appeal were Geoffrey T. Stover for Hamzeh and David A. Cordier for Mendoza.
The case is Mendoza v. Hamzeh, 13 S.O.S. 2006.
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