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C.A. Reinstates Suit by Man Against Alleged Blackmailer, Says Refund May Be Sought
Tort Action Based on Extortion Is Not Authored, Opinion Says, But Statutes Do Permit Contract Action Based on ‘Menace’
By a MetNews Staff Writer
A man who paid a woman about $500,000 and bought her a BMW to prevent her from carrying out a threat to tell his wife that they had an affair, resulting in her giving birth to a child, may seek a return of the funds he spent now that she has made the disclosure, the Court of Appeal has held, saying that while there is no civil cause of action for extortion, statutes do authorize a rescission of agreements based on menacing.
The opinion by Justice Thomas M. Goethals of the Fourth District’s Div. Three, filed Tuesday, reverses, in part, a judgment of dismissal which followed Orange Superior Court Judge Donald F. Gaffney’s sustaining of a demurrer, without leave to amend, to the complaint filed by Bruce Tran against his alleged lover-turned-blackmailer Que Phung Thi Nguyen.
Gaffney ruled that, under case law, there is no civil remedy for extortion except under narrow circumstances—threatening institution of criminal or civil proceedings based on a claim known by the perpetrator to be false—that were not present. Goethals agreed that Tran cannot maintain an action in tort, but said:
“[W]e conclude the statutory right to rescind consent based on ‘menace,’ which is grounded in Civil Code sections 1566, 1567 and 1570, is analogous to the crime of extortion—and is applicable in the circumstances alleged here.”
Statutory Provisions
He noted that §1566 says that “consent which is not free is nevertheless not absolutely void, but may be rescinded by the parties”; §1567 provides that “apparent consent is not real or free when obtained through…[m]enace” and §1570 defines menace as including a “threat” of “duress.”
The opinion orders the case remanded to the Superior Court “with instructions to allow Tran leave to amend his cause of action for civil extortion based on Civil Code sections 1566, 1567, and 1570.”
The justice agreed with Gaffney, however, that Tran may not proceed on his cause of action for infliction of emotional distress, explaining that the cause of action authorized by the opinion, “which entitles a party to seek rescission of the consent underlying a transaction, sounds in contract rather than tort.”
He said:
“Thus, it does not support recovery of emotional distress damages.”
Wife’s Action
Goethals related in a footnote:
“Tran’s wife alleged a separate cause of action for intentional infliction of emotional distress against Nguyen, as well as a cause of action seeking an order to set aside the gifts of alleged community property made by Tran to Nguyen. Because the trial court overruled Nguyen’s demurrer to the latter cause of action, no judgment has been entered in favor of Tran’s wife, and neither she nor her causes of action are involved in this appeal.”
The case is Tran v. Nguyen, 2023 S.O.S. 4267.
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