Thursday, December 8, 2016
Cross Action for ‘Civil Extortion’ Was a SLAPP, Appeals Court Declares
By a MetNews Staff Writer
A cause of action by the sellers of real property for “civil extortion”--based on a threat by the would-be buyer’s agent that if the deal were not consummated, criminal proceedings might be brought, possibly resulting in them going to jail--was properly stricken under the anti-SLAPP statute, the Court of Appeal for this district has declared.
The opinion from Div. Two affirms an order snipping from the sellers’ first amended cross-complaint the cause of action for extortion, as well those based on abuse of process and violation of the Rosenthal Fair Debt Collection Practices Act. Presiding Justice Roger Boren wrote the opinion, filed Monday, and not certified for publication.
Plaintiff Amanda Ashouri is seeking specific performance and is maintaining other causes of action.
Boren agreed with Los Angeles Superior Court Judge Huey Cotton, who granted the anti-SLAPP, that the sellers, cross-complainants Jeffrey and Shirley Semel, cannot maintain a cause of action for extortion.
He said the threat--conveyed by Ashouri’s then-fiancé, now husband, Alan Mehdiani--satisfies the first prong of the anti-SLAPP statute, coming under the category of free speech. Boren recited the threat:
“Mehdiani told appellants that they might be liable for punitive damages in a lawsuit. He threatened that appellants might go to jail if the fraud accusation became a criminal matter.”
Nor Protected Speech
The Semels maintained that the threat amounted to an attempt at extortion, which is not protected speech, and that an anti-SLAPP motion therefore does not lie.
Boren responded that cases recognizing a cause of action for extortion have involved “extreme circumstances.” He wrote:
“There is no evidence that Ashouri threatened to report appellants to any state or federal authority.”
He said the conduct “does not on its face arise to the ‘extreme’ levels” that conduct did in two cases recognizing the tort, and was not “illegal as a matter of law.”
Turning to the second prong of the statute, he said the Semels did not show a probability that they would prevail. Boren reasoned:
“Appellants assert that they established the probability of prevailing but do not provide argument or analysis. The threat in this case was of a lawsuit without evidence of a wrongful threat of criminal or civil prosecution, which is not extortion. In any event, appellants have not shown that the litigation privilege is inapplicable to this claim.”
Abuse of Process
Boren agreed with Cotton that the cause of action for abuse of process--taking the form of alleged false statements, under penalty of perjury, by a cross-defendant that he had served the Semels when he hadn’t--was “was predicated on protected activity and was barred by the litigation privilege.”
He also agreed that there was no cause of action based on a prelitigation demand letter from Ashouri’s lawyer, Simon Esfandi, under the Rosenthat Act, which bars a debt collector making a “threat to take any action that cannot legally be taken or that is not intended to be taken.”
Boren said the act “expressly states that the term ‘debt collector’ does not include attorneys” and that, in any event, the letter comes under the litigation privilege.
The case is Semel v. Ashouri, B263937.
The Semels were in pro per and Esfandi represented Ashouri.
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