Thursday, March 21, 2019
Court of Appeal:
Lawyer’s Threat to Expose Doctor ‘Probably’ Not Extortion
Segal Says Litigation Privilege Precludes Liability in Action Over Warning to Surgeon That Unless He Paid Money Being Sought in Small Claims Action, His Conduct Would Be Bared on CAALA Listserv
By a MetNews Staff Writer
The Court of Appeal for this district has held that it was “probably” not extortion for an attorney to threaten an orthopedic surgeon that an alert would be sent, via a listserv, to all members of the Consumer Attorneys Association of Los Angeles advising that the doctor had failed to show up to testify as an expert witness and then refused to refund the $7,000 advanced to him.
But even if it did amount to extortion, Justice John L. Segal of Div. Seven said in an unpublished opinion filed Tuesday, the litigation privilege would shield the lawyer from civil liability.
First to sue was Canoga Park personal injury attorney Jeffrey Knoll. In a small claims action, he sought to recoup the $7,000 from San Fernando Valley medical doctor Michael Schiffman.
An attorney for the doctor, Ian “Buddy” Herzog of the Santa Monica firm of Herzog, Yuhas, Ehrlich & Ardell, threatened that an action for malicious prosecution would be brought against Kroll if he did not dismiss the small claims action within seven days. (The California Supreme Court held in the 1980 case of Pace v. Hillcrest Motor Co. that an action for malicious prosecution will not lie based on the filing of a small claims action.)
Knoll responded in a Feb. 6, 2017 letter to Herzog:
“It is unfortunate that after working with Dr. Schiffman’s office for over twenty years, and having sent checks over the years totaling literally hundreds of thousands of dollars, your client would take the arrogant position of keeping expert witness fees that were advanced as a courtesy to him when due to an apparent calendaring error in his office he failed to appear at trial. Your offer to resolve this matter by mutual dismissal is hereby rejected. However, I will propose to your client that if a refund of the $7,000 is not received by the close of business Friday, February 10, 2017, I will be notifying every member of Consumer Attorneys of Los Angeles (CAALA), of Dr. Schiffman’s failure to appear at trial for expert testimony, and then refusing to refund the advanced fees by way of the CAALA Law Discussion List.”
In a Feb. 9 letter to Kroll, Herzog warned:
“Even if you had a righteous claim for the nonrefundable fee in this case—which Dr. Schiffman adamantly denies, your extortion remains extortion….
“You keep this up, you will get sued for either malicious prosecution, defamation or extortion.”
Small Claims Victory
Kroll obtained a judgment in small claims court for $7,000 on May 22, 2017. An appeal failed on Nov. 29, 2017.
Meanwhile, on June 20, 2017, Schiffman, represented by Herzog, sued for extortion based on the Feb. 6 letter.
Los Angeles Superior Court Judge Barbara A. Meiers sustained a demurrer, without leave to amend, and Schiffman appealed from the ensuing judgment of dismissal.
In his opinion affirming the judgment, Segal noted that extortion, while a crime, will also give rise to civil liability. He quoted the relevant statute, Penal Code §518, as defining extortion as “the obtaining of property...from another, with his or her consent...induced by a wrongful use of force or fear....”
Fear may be induced, under the statute, by various means, he recited, including accusing the victim of a relative or family member “of a crime” or imputing to the victim “a deformity, disgrace, or crime.”
“Was Knoll’s letter extortionate? Probably not. Contrary to Schiffman’s suggestion, it did not accuse Schiffman of theft or other crime….A dispute over payment for professional services allegedly not performed may be a breach of contract, but it is not theft.”
“Nor did Knoll’s letter expose Schiffman to ‘disgrace.’…”
“Knoll’s letter certainly was not very professional. Indeed, had Knoll threatened to notify law enforcement or the California State Bar, he would have violated the California Rules of Professional Conduct….”
Even if Knoll’s letter was extortive the jurist said, “the litigation privilege under Civil Code section 47, subdivision (b), protects Knoll from civil liability,” explaining:
“As long as a communication has some reasonable relation to a judicial proceeding, the communication is immune from all civil liability other than malicious prosecution….
“Knoll’s letter logically and directly related to pending litigation: the small claims action. Knoll sent his letter after he had filed his complaint in small claims court and in response to Schiffman’s letter demanding that Knoll dismiss the complaint or face a malicious prosecution action….Thus, the litigation privilege bars Schiffman’s extortion action against Knoll.”
The case is Schiffman v. Knoll, B28631.
Herzog was joined by Susan E. Abitanta of his firm in representing Schiffman on appeal. Knoll acted for himself.
In years gone by, Herzog was a luminary of the plaintiff’s bar. In 1983, he was president of the Los Angeles Trial Lawyers Association (now CAALA) and was 1991 president of the California Trial Lawyers Association (now Consumer Attorneys of California).
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