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Court of Appeal:
Cross-Complaint of Mark Geragos, Others Was a SLAPP
Stratton’s Opinion Finds Cited California Supreme Court Decision Inapposite, Declares Recordings Substantiating Allegations of Extortion Attempt by Former Client Were Properly Barred Because They Were Made Surreptitiously
By a MetNews Staff Writer
The Court of Appeal for this district yesterday affirmed the granting of an anti-SLAPP motion in response to a cross-complaint by criminal defense lawyer Mark Geragos and his firm contending that a former client tried to extort money from them by threatening to make a complaint to the State Bar if they did not pay, holding that the trial court correctly barred admission of the transcript of a phone conversation substantiating the allegation.
Presiding Justice Maria E. Stratton of Div. Eight authored the opinion. It upholds an order by Los Angeles Superior Court Judge Barbara M. Scheper granting the special motion to strike pursuant to Code of Civil Procedure §425.16.
The recording was made prior to the former client, Armen Abelyan, suing for a return of a $2,500 consultation fee and a $25,000 retainer. It captures the tail end of a telephone conversation between attorney Alexandra Kazarian, who is allied with the Geragos firm, and Elliott N. Tiomkin, the lawyer for Abelyan.
Scheper ruled that the recording, or a transcript of it, was inadmissible because it had been made surreptitiously. There was, she found, a violation of Penal Code §632 which forbids recording a confidential communication without the consent of the other party.
Penal Code §633.5
However, the cross complainants—Geragos, the firm of Geragos & Geragos, and Setara Qassim, an associate in the firm—argued that an exception applied, rendering the recording lawful. Penal Code §633.5, they pointed out, provides that §632 does “not prohibit one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion….”
Their opening brief quotes the California Supreme Court’s 1991 opinion in Lubetzky v. State Bar as saying:
“Although Penal Code section 632 makes the recording of a confidential telephone conversation without the consent of all parties a criminal offense, Penal Code section 633.5 exempts from the sweep of the statute an undisclosed recording by one of the parties of a conversation ‘reasonably believed to relate to the commission by another party [to the conversation] of [certain enumerated crimes].’ ”
They argued that the conversation was not confidential and that “Penal Code §633.5 exempts Kazarian’s recordings from operation of § 632 because Kazarian initiated the recordings to obtain evidence that she reasonably believed would show Tiomkin committing extortion.”
Transcript of Conversation
Kazarian switched on the recorder to obtain from Tiomkin a confirmation of what he had previously said. The transcript reflects this colloquy:
“Kazarian: I think we left off where I couldn’t remember if you said he had or he had not filed a State Bar claim. You said he had not; right?
“Tiomkin: Yes, no. He has—he has not. Correct.
“Kazarian: Okay. And then you were saying that you believe that if he was refunded fully, that he would not?
“Tiomkin: Correct. Correct. He has—I mean, I—I mean, I—he hasn’t up to this point. I don’t know how I can like put that in a settlement agreement. I don’t think I could; right?...And I— know that all that he wants is his money back...but, you know, in terms of, you know, what he’s interested in, he’s not—he doesn’t want to score any points. He just wants to get his—you know, his retainer back.”
Later:
“Kazarian: You want—you want me to take to Mark [Geragos] or Greg [Kirakosian] or whoever’s doing settlement negotiations that if the [$]27,500 is paid, there will be no State Bar complaint, and the case will be dismissed.
“Tiomkin: Correct.”
Kirakosian is the lawyer who filed the cross complaint.
The brief argues:
“The above transcript of the conversation between Kazarian and Tiomkin, alone—not to mention as coupled with the veiled threats in Tiomkin’s emails to Kirakosian—provide conclusive evidence of extortion as a matter of law.”
Stratton’s Opinion
The California Supreme Court in its 2006 opinion in Flatley v. Mauro held that while communications in connection with pending or impending litigation are normally protected speech, satisfying the first prong of the anti-SLAPP statute, extortion is not protected. The cross-complaints argued that Flatley applies; Stratton declared in yesterday’s opinion that it doesn’t.
She pointed out that unlike the defendant in Flatley, who acknowledged making the threats attributed to him, “Tiomkin does not concede that he engaged in extortionate or illegal conduct as alleged by the Geragos Parties” reasoning:
“Thus, the applicability of the Flatley exception hinges on whether the Geragos Parties provided uncontroverted evidence conclusively showing Abelyan and/or Tiomkin committed extortion as a matter of law.”
A declaration by Kirakosian recited that Tiomkin, in a telephone conversation of Aug. 14, 2020, “unequivocally stated that his client would be filing a State Bar complaint if the matter wasn’t promptly resolved.” That was, however, controverted by Tiomkin’s contrary declaration, Stratton noted.
Emails from Tiomkin contain veiled threats but, the jurist said, “Nowhere in Tiomkin’s emails do we find a threat to file a State Bar claim coupled with a demand for money.”
The key issue boiled down to the admissibility of evidence as to Tiomkin’s confirmation in the recorded conversation with Kazarian of his threat to report Geragos to the State Bar if the $27,500 were not paid.
“We conclude the trial court did not err in finding the audio recording inadmissible,” Stratton wrote.
She rejected the asserted applicability of §633.5, saying:
“Thus, Penal Code section 633.5’s express language narrowly permits use of a recording of a confidential communication ‘in a prosecution for extortion, kidnapping, bribery’ and other expressly specified crimes. Nevertheless, the Geragos Parties argue Penal Code section 633.5 also allows for its use in civil actions. We have reviewed the case authority the Geragos Parties have cited and find that none specify that nonconsensual recordings are admissible evidence in civil actions.”
Stratton did not address the Lubetzky case, cited by Geragos. There, the high court rejecting the determination by the State Bar that a candidate for admission, Richard H. Lubetzky, had failed to demonstrate moral fitness.
During a hearing conducted by the State Bar, Lubetzky’s lawyer sought to introduce recordings of two phone conversations with his accuser in an attempt to impeach that person’s credibility. The move backfired, with the State Bar concluding that Lubetzky “broke the law” by making the recordings.
Wording of Lubetzky
The Supreme Court said, in a “By the Court” opinion:
“Several decisions of the Court of Appeal have examined the relationship between Penal Code sections 632 and 633.5. All have concluded—correctly—that the latter exempts from the former an unconsented recording made with the requisite reasonable belief although the recording fails to capture the anticipated evidence…or the initial purpose of the recording is self-protection rather than to gather evidence for use in a criminal prosecution.”
Notwithstanding that Lubetzky was not gathering evidence for use in a prosecution, the court found that “petitioner’s conduct fell within the exception of Penal Code section 633.5 and that the circumstances under which the tape recordings were made do not show bad moral character.”
Although Stratton addressed one of the federal decisions Geragos cited, she did not explain why the conclusion she reached as to the inapplicability of §633.5 does not conflict with the California Supreme Court’s unanimous determination that the statute does authorize a recording without consent of the other party for “self-protection rather than to gather evidence for use in a criminal prosecution.”
(The Office of the Attorney General, in a July 30, 1999 opinion, expressed the view that recordings secretly made “in an attempt to gain evidence of child molestation alleged to have been committed by the person called” would be lawful and that the evidence “would be admissible in a subsequent civil…proceeding.” It cited Lubetzky for the proposition that “even if the person making the recording does not accomplish the objective of obtaining the evidence sought, there is no violation of the Act’s provisions if the recording is made for a proper purpose.”)
Rule 3.10
Rule 3.10(a) of the Rules of Professional Conduct, relied on by Geragos, provides:
“A lawyer shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute.”
Stratton said:
“Even assuming the Geragos Parties could establish Tiomkin had violated rule 3.10(a), that violation would not constitute criminal conduct within the narrow Flatley exception, which is limited to criminal conduct and not a violation of the Rules of Professional Conduct or a civil statute.”
Litigation Privilege
She said that the second prong of the anti-SLAPP statute—a showing by the plaintiff or cross-complainant of a probability of prevailing on the merits—could not be met in light of the litigation privilege contained in Civil Code §47.
The case is Geragos v. Abelyan, 2023 S.O.S. 729.
Krista L. Baughman and Harmeet K. Dhillon of San Francisco’s Dhillon Law Group represented Geragos, his firm, and Qassim. Damion D. D. Robinson of the downtown Los Angeles firm of Diamond McCarthy LLP acted for Abelyan and Tiomkin.
Geragos commented yesterday that, with reference to Abelyan’s action on the complaint:
“We already tried the case and won on the merits which undercuts the reasoning of this opinion.
On Sept. 19, Abelyan testified; the plaintiff rested; Sean E Macias, representing the defendants, moved for a nonsuit; Scheper granted it.
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