Flatley v. Mauro

WERDEGAR, J., Concurring.

I agree with the majority that defendant does not enjoy the protection of the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.) 1 I therefore concur in the judgment affirming the Court of Appeal. In moving to strike this action, it was defendant’s initial burden to demonstrate the anti-SLAPP statute’s applicability by showing the lawsuit arises from protected speech or petitioning. (Id., subds. (b)(1), (e); Zamos v. Stroud (2004) 32 Cal.4th 958, 965 [ 12 Cal.Rptr.3d 54 , 87 P.3d 802 ].) This he failed to do. Insofar as the gravamen of plaintiff s claim is that defendant attempted to extort money from him by threatening, through “various kinds of opprobrium” (maj. opn., ante, at p. 332), to ruin plaintiff’s reputation and encourage prosecutorial authorities to pursue plaintiff (see especially id. at pp. 309-311, 329-332), the action does not arise from protected speech and petitioning.

The majority details plaintiffs evidentiary submissions opposing defendant’s anti-SLAPP motion. (Maj. opn., ante, at pp. 306-311.) These describe what the operative second amended complaint alleges: a “vicious and criminal scheme” by defendant and others “to extort money from plaintiff by asserting demonstrably false claims of sexual misconduct by plaintiff and threatening to publicize those false claims throughout the world, so as to ‘ruin’ plaintiff, if he would not pay the money . . . demanded.” Defendant, the complaint explicitly alleges, “participated in seeking to extort money from plaintiff by this malicious, oppressive, and criminal scheme” involving “threats to ruin him with widespread and continuing publication of . . . false claims of rape not only currently, but also whenever, in the future, he or his dance troupe would perform and . . . threats to bring about plaintiff’s criminal *334 prosecution” for rape. As the majority points out, defendant’s scheme included threats “that if [plaintiff] did not pay an acceptable amount, he . . . would ‘go public’ ” and “would ensure that the story would follow [plaintiff] . . . and would ‘ruin’ him.” (Maj. opn., ante, at p. 311.) That plaintiff alleges the extortion scheme also included threats to sue (id. at pp. 307-309) does not necessarily mean the action “arises from” defendant’s litigation-related activities. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 930-931 [ 116 Cal.Rptr.2d 187 ] [mere presence of allegations in city’s cross-complaint that contractor extorted money, inter alia, by filing or threatening lawsuits did not render it a SLAPP].)

Moreover, for many of the reasons the majority cites in concluding defendant’s conduct was illegal as a matter of law (maj. opn., ante, at pp. 325-332), plaintiff plainly has demonstrated a probability that he will prevail on the claim (§ 425.16, subd. (b)(1)), bearing in mind, as we repeatedly have noted, that in order to make that demonstration he need only “state[] and substantiate!] a legally sufficient claim.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123 [ 81 Cal.Rptr.2d 471 , 969 P.2d 564 ]; see also Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 [ 39 Cal.Rptr.3d 516 , 128 P.3d 713 ]; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821 [ 123 Cal.Rptr.2d 19 , 50 P.3d 733 ].) Accordingly, the trial court properly denied defendant’s anti-SLAPP motion.

As the foregoing disposes of the matter before us, I decline to join the majority in creating a judicial exception to the first (i.e., “arising from”) prong of the anti-SLAPP statute for actions based on conduct courts determine was “illegal as a matter of law.” (See § 425.16, subd. (b)(1); maj. opn., ante, at pp. 311-325.) Although the Legislature has embraced the concept of “illegal as a matter of law” as a limit on motions to strike so-called SLAPPback actions for malicious prosecution and abuse of process (see § 425.18, subd. (h)), it has not done so with respect to other anti-SLAPP motions and I am doubtful that our doing so is necessary or appropriate.

We previously have observed that the anti-SLAPP statute “poses no obstacle to suits that possess minimal merit.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 93 [ 124 Cal.Rptr.2d 530 , 52 P.3d 703 ].) Accordingly, we have rejected, as contrary to the legislative design (id. at p. 94), any suggestion that in order to invoke the special motion to strike, i.e., to satisfy the statute’s first prong, a “defendant must first establish her actions are constitutionally protected under the First Amendment as a matter of law” (id. at p. 95). I realize the majority’s new exception does not go that far. Nevertheless, in adding to the burdens of defendants who seek anti-SLAPP protection the requirement that they first resist, on the merits, a plaintiff’s assertion that the *335 conduct they are being sued for was “illegal as a matter of law” (maj. opn., ante, at p. 320), the majority moves in that direction. Since by definition all conduct sued upon is alleged to be illegal, the majority’s assurances that the “narrow circumstance” (maj. opn., ante, at p. 315; see also id. at p. 316) for plaintiffs’ invoking an illegal-as-a-matter-of-law defense to an anti-SLAPP motion will occur only in “rare cases” (id. at p. 320) are not convincing. 2

Although the majority is at pains to emphasize that the question which arises under its new first-prong exception, i.e., whether the defendant’s underlying conduct was illegal as a matter of law, “is prehminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing” (maj. opn., ante, at p. 320), I suspect maintaining any such distinction in practice will prove difficult. The majority asserts “the showing required to establish conduct illegal as a matter of law—either through defendant’s concession or by uncontroverted and conclusive evidence—is not the same showing as the plaintiff’s second prong showing of probability of prevailing.” (Ibid.) The standard the majority articulates for its new exception, however, is virtually indistinguishable from the standard we previously have articulated for satisfying the statute’s second prong. 3 The similarity may well sow doctrinal confusion among courts previously given to understand that “any ‘claimed illegitimacy of the defendant’s acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff’s [secondary] burden to provide a prima facie showing of the merits of the plaintiff’s case.’ ” (Navellier v. Sletten, supra, 29 Cal.4th at p. 94 .) 4

*336 As the majority points out, “[o]ur concern for effectuating the legislative intent as demonstrated by the plain language of the [anti-SLAPP] statute has led us to reject attempts to read into section 425.16 requirements not explicitly contained in that language.” (Maj. opn., ante, at p. 312.) For the reasons stated, I believe the majority’s departure from that course in the present case is unwise. 5

*337 January 2,2003

Michael Flatley, Individually, & As Officer of Unicom Entertainment, Inc Parasec, Inc.-Registered Agent 318 No. Carson St., Suite 208 Carson City, Nevada 89701

VIA FAX; 888-886-7168

***Thts communication is governed by all applicable common taw decisions of .the Stale of Illinois and Rule 408 of the U.S. Federal Rules of Evidence. All information contained herein is for settlement purposes only.***

RE: LAWSUIT AGAINST MICHAEL FLATLEY. INDIVIDUAI J.Y-AND UNICORN ENTERTAINMENT. INC.. AND THE VENETION RESORT-HOTEL-CASINO JOINT VENTURE GROUP

Our Client: JANE DOE (identity shall remain inadmissible, But the Official Police Report detailing this Incident is on file with The Las Vegas Police Department, under Report # 02-1114-1768

Date of Rape/Sex Assault: OCTOBER 19-20,2002

DEAR FLATLEY et. al.:

Please be advised that we represent a women with whom you engaged in forcible sexual assault on or about October 19-20,2003. Please consider this ourfirst, and only, attempt to amicably resolve this claim against all Defendants named in the Complaint at Law enclosed herein.

000086

*338 NOTICE OF CLAIM & ATTORNEY’S LIEN

Please consider this as Notice of our Attorneys’ Liens. We hereby make a claim and lien in the amount of 40% of the Total Recovery of all funds obtained through trial or settlement, plus all costs of suit, expert fees, and attorney fees leveled against you.

We suggest you immediately contact us. If you have insurance covering INTENTIONAL ACTS, then you should immediately contact all of your primary, excess and umbrella insurance carriers. They will be able to handle this for you.

Tell them to contact me directly. Your failure to do so shall result in us immediately filing a lawsuit against you and seeking all judgment proceeds directly from your personal assets. It is therefore in your best interests to contact us within the timeframe allotted, or all demands to settle shall be withdrawn.

You are granted until January 30,2Q02. to resolve this matter. The amounts claimed in the lawsuit are naturally negotiable prior to suit However, any and all'offers to compromise, settle and amicably resolve this case will be automatically withdrawn at the close of business at 6:00 n.m. on January 30.2003. Central Standard Time, for the U.S.

Please be further advised that we have retained several forensic expert witnesses who, in additional to our client’s treating medical personnel, have already completed thorough investigations and shall be testifying on our behalf. We attached their Biographical Information Sheets, Curriculum Vitae’s, and their opinions shall be disclosed in detail in the public filed court documents in this litigation.

You will note that I have worked at Lloyd’s of London, and am familiar with International Law. These causes, of action allow for PUNITIVE DAMAGES. Punitive Damages are non-dischargeable in bankruptcy, and are recognized under British Law. We can therefore execute and collect any award against MICHAEL FLATLEY personally in the U.S., or the U.K

Since Punitive Damages are to serve as a deterrent against future Reckless, Wilful & Wanton, and Intentional acts, Economist Frank Maguire, of Reed & Stratford of Milwaukee, Wisconsin, will testify as to the amount of punitive damages which the law recognizes to justify “sending a message” or what constitutes a “deterrent”.

2

000087

*339 Your research will find that within the last 2 years alone, a settlement of $100,000,000.00 was awarded for Punitive Damages in favor of family who suffered from Negligent, Reckless, Wilful & Wanton, and Intentional Torts. Mr. Maguire shall testify as to what amount will justify a pro-rata share of punishment, and a jury will then award this amount against MICHAEL FLATLEY individually, from his own personal assets.

To do so, an in-depth investigation into MICHAEL FLATLEY’Spersonal assets, business agreements, royalties, future engagements and financial compensation worldwide shall be undertaken. ALL OF THIS INFORMATION SHALL BECOME A MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH THE COURT, as it will be part of the bases of several of our expert’s testimony.

Any and all information, including Immigration, Social Security Issuances and Use¡ and IRS and various State Tax Levies and information will be exposed. We are positive the media worldwide will enjoy what they find. .

Our Forensic Criminologist, Dr. John Lombardi, along with our expert Human Resource Consultant, Dr. David K. Hirshey, conclude that all Defendants failed to' adequately provide requisite safeguards for our client, and that there existed reason to know, prior to this assault, of a propensity and likelihood of such criminal behavior. As such,' each Defendant named in the attached Complaint at Law shall be sued for compensatory and punitive damages, along with any other agents, owners or representatives of same, which shall be discovered through the course of the litigation.

Once again, please remember all pertinent information and documentation, if in violation of any U.S. Federal, Immigration, I.R.S, S.S. Admin., U.S. State, Local, Commonwealth U.K., or International Laws, shall immediately turned over to any and all appropriate authorities.

Once suit is filed, we anticipate that other causes of action shall arise. Defamatory comments, Civil Conspiracy, Reckless Supervision are just the beginning, and we already have ample evidence to prove each and every element for all these additional causes of action. Again, these actions allow for Punitive Damages.

3

000088

*340 FIRST & FINAL TIME-LIMIT SETTLEMENT DEMAND

We look forward to a prompt and timely response. There shall be no continuances nor any delays. If we do not hear from you, then we shall know you are not interested in amicably resolving this claim and we shall immediately file suit.

Kindly direct all future communications, corresponded and calls to my attention.

[[Image here]]

Í : A Professional Law Corporation

!*■ DDM/sg

Enc.

i'-; Co: MARC MARTIN; JANE DOE

1 ’This communication is governed by alt applicable common law decisions of the State of Illinois and Rule 408 of the U.S. Federal Rules of Evidence. All information contained herein is for settlement purposes only.***

; :■ P.S. Note: along with filing suit, there shall be PRESS RELEASES Disseminated to. but not limited to. the following

■ ■ MEDIA SOURCES: Fox News Chicago, Fox News Indiana, Fox News ; Wisconsin, and the U.S. National Fox News Network; WGN National U.S. Television; A1I Local Las Vegas Television, radio stations and newspapers; The Chicago.Tribune, The Chicago Southern Economist, The News Sun, The Beacon . News, The Daily Herald, The New York Times, The Washington Post; ALL . National U.S. Television Networks of NBC, ABC and CBS; as well as INTERNET - POSTINGS WORLDWIDE, including the BRITISH BROADCASTING COMPANY, and the Germany National News Network Stations.

4

000089

Unlabeled section references are to the Code of Civil Procedure.

Similarly, since many torts are crimes and vice versa, I am not confident that, in branding this tort defendant’s conduct “criminal extortion as a matter of law” (maj. opn., ante, at p. 332, fn. 16), the majority has invoked a principle easily “limited to the specific facts of this case” (id. at p. 333).

The majority, citing section 425.16, subdivision (b)(2), articulates this standard for deciding whether a plaintiff qualifies for its new first-prong exception: “ ‘We consider “the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.” . . . However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ ” (Maj. opn., ante, at p. 326.) In Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at page 821 , we cited the same subdivision in articulating the standard for deciding the second-prong question of potential merit: “[T]he trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant. . . ; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.”

Nor is it clear what the consequences for the parties, going forward, are likely to be of our declaring at this early stage of the litigation that defendant’s conduct constitutes extortion as a matter of law. (See maj. opn., ante, at p. 332.) The majority does not address the point.

The majority relies principally on Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356 [ 102 Cal.Rptr.2d 864 ], which we disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68 , footnote 5 [ 124 Cal.Rptr.2d 507 , 52 P.3d 685 ], But as the majority acknowledges, Paul involved “ ‘a factual context in which defendants . . . effectively conceded the illegal nature of their . . . activities for which they [were sued]. Thus, there was no dispute on that point and [the Court of Appeal there] concluded, as a matter of law, that such activities are not a valid exercise of constitutional rights as contemplated by section 425.16.’ ” (Maj. opn., ante, at p. 315, quoting Paul, at p. 1367.) Moreover, the court in Paul was careful to note that, “had there been a factual dispute as to the legality of defendants’ actions, then [the court] could not so easily have disposed of defendants’ motion.” (Paul, at p. 1367.) Here, of course, there indeed exists a factual dispute as to the legality of defendant’s actions. (See maj. opn., ante, at p. 306.)