Thursday, June 21, 2018
Court of Appeal
Attorney’s Extortive Threats Not Shielded by Litigation Privilege
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday upheld an attorney’s conviction for conspiracy to commit extortion and attempted extortion, declaring that threatening to bring a baseless suit on behalf of a client wasn’t covered by the litigation privilege and use of an agent wired for sound was not entrapment.
The unpublished opinion, by Justice Richard M. Aronson of Div. Three, denies Newport Beach attorney James Toledano’s appeal from a jury’s conviction on the two counts. The lawyer—whose law license was suspended pending the appeal—was sentenced to nine months in jail and three years of formal probation.
Toledano, former chair of the Orange County Democratic Central Committee and a three-time unsuccessful candidate for the Assembly, was the sole appellant. Michael Roberts, his co-conspirator, in 2014 pled guilty to one felony count of attempted extortion by threat, conspiracy, and four misdemeanor counts based on harassment, receiving a six-month jail sentence.
Opinion Conceals Identities
The victims are referred to in the opinion as “Mr. and Mrs. M.,” but are identified in an Orange County District Attorney’s Office press release and in news stories as Priscilla “Bo” Marconi and Dick Marconi. They are owners of Marconi Automotive Museum in Tustin.
Roberts, a personal trainer, in 1997 met the future wife of Dick Marconi (the Marconis were wed in 2003 after a lengthy relationship). Dick Marconi hired Roberts to manage a gym, and in 2000, Roberts moved into Dick Marconi’s guest house.
The relationship between Roberts and the Marconis soured around 2005. Roberts moved out and, in 2006, began making harassing contact with Priscilla Marconi, which she and her husband reported to the Sheriff’s Department.
Toledano Writes Letter
By November 2007, Toledano got involved in the matter, writing Priscilla Marconi a demand letter threatening a suit for defamation and harassment of Roberts.
Priscilla Marconi forwarded that letter to her attorney, Paul R. Roper. Roberts continued to harass her in 2008, prompting the Marconis to seek a civil restraining order against him.
It was in the context of negotiating the civil restraining order that Toledano made the demand that resulted in his conviction. He told Roper that unless Priscilla Marconi paid Roberts $360,000, they would give evidence at a hearing of an alleged long-term affair between her and Roberts, which would be brought to the attention of both her husband and the local news media.
Attorney Acting Undercover
Roper reported Toledano’s demand to the Newport Beach Police Department and the District Attorney’s Office. The police enlisted Roper as an undercover agent, giving him a recording device to wear when making the arrangements for payment.
Roper played along with the blackmail scheme, going so far as to get a duffel bag full of the demanded money from Priscilla Marconi. The exchange took place between Roper and Roberts, after Toledano had bowed out, claiming to be too busy to be involved.
The police arrested Roberts immediately. They later served a warrant for a search of Toledano’s office and gathered the evidence which helped the jury convict the lawyer.
Toledano also argued his threat to bring out evidence in the course of representing Roberts was covered by the litigation privilege, contained in Civil Code section 47, which provides:
“A privileged publication or broadcast is one made:...(b) In any...(2) judicial proceeding....”
“A demand in anticipation of litigation can be a legitimate and privileged activity….The litigation privilege applies only when it relates to litigation that is contemplated in good faith and under serious consideration; no public policy supports extending a privilege to persons who attempt to profit from hollow threats of litigation….Whether a prelitigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact….But demands that are so extreme as to constitute criminal extortion are not protected; extortion is not a constitutionally protected form of speech.”
The jurist quoted, with approval, from the brief of the Office of Attorney General, which observed:
“Threatening to destroy a person’s marriage and reputation by disseminating that person’s personal information unless that person covertly delivers a large quantity of cash in a duffel bag to a hotel parking lot, is not related to any ‘judicial proceeding’ as contemplated by Civil Code section 47.”
Conley correctly declined to give an instruction requested by Toledano that inaccurately stated the law with respect to the litigation privilege, Aaronson said, but added that the judge should have redrafted the instruction and given it. The error was, however, harmless, he declared, reasoning:
“[I]t is not reasonably probable the outcome would have been different had the court given an instruction on the litigation privilege. The prosecution’s civil litigation expert testified there was ‘no evidence’ in Toledano’s file showing a valid legal claim. When meeting Roper, Toledano did not discuss the civil lawsuit he mentioned in his correspondence, but instead threatened to reveal the alleged affair at the hearing on the injunction unless Mrs. M paid the $360,000 demand. The jury hardly needed an expert to tell them exchanging duffel bags of cash for documents in a hotel parking lot showed an attempted extortion, not a legitimate settlement of a legal dispute. Little if any evidence showed Toledano’s demand related to litigation contemplated in good faith and under serious consideration.”
Toledano also argued that Conley erred in failing to instruct the jury on entrapment. The police did not entrap Toledano, Aaronson said, because they did not attempt to persuade him to commit his crimes.
“Although Roper wore a wire and recorded his conversations with Toledano, the detectives did not tell Roper what to say in the discussions Roper had with Toledano. There was no overbearing conduct, badgering, cajoling, or importuning. Roper simply played along with Toledano’s extortion demands and agreed to submit to them on behalf of Mrs. M.”
The case is People v. Toledano, G051787.
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