When it comes to the anti-SLAPP statute, there’s no such thing as “just a little” criminal extortion

The courts’ application of California’s “anti-SLAPP statute” — Code of Civil Procedure section 425.16 — has been heavily criticized as being too broad. Section 425.16 authorizes a “special motion to strike” one or more causes of action in a complaint. A defendant succeeds on such a motion if he can demonstrate that (1) the suit is a SLAPP — i.e., a Strategic Lawsuit Against Public Participation — because the causes of action are based on free speech on a public issue or on petitioning of the government and (2) that the plaintiff is not likely to prevail in the action.

Witkin describes the type of lawsuits section 425.16 was designed to thwart:

Strategic Lawsuits Against Public Participation (SLAPP suits) are brought to obtain an economic advantage, not to vindicate a legally cognizable right. They typically seek damages that would be ruinous to the defendant. They pretend to be ordinary lawsuits, but are distinguishable in that they are generally meritless suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so. Because winning is not a SLAPP plaintiff’s primary motivation, the traditional safeguards against meritless actions are inadequate

(5 Witkin, Cal. Procedure (5th ed. 2008), Pleading, § 1017, pp. 426-427 [citation omitted].)

Criticism of the anti-SLAPP statute usually centers around  the contention that it is much broader than needed to serve its purpose. That is, while many actions might technically fit within the statutory definition of a SLAPP, the same action might also be one genuinely brought to vindicate a legally cognizable right. To some, the statute seems almost limitless in this regard.

Consider Mendoza v. Hamzeh, case no. B239245 (2d. Dist., April 22, 2013). When Mendoza’s employer believed that Mendoza had committed fraud, conversion, and breaches of contract costing the employer in excess of $75,000, the employer’s lawyer (Hamzeh) sent a letter to Mendoza threatening to report him to multiple authorities unless Mendoza cooperated in the employer’s investigation and paid back all the damages disclosed by the investigation. Mendoza sued Hamzeh for civil extortion, intentional infliction of emotional distress and unfair business practices, and Hamzeh moved to strike under section 425.16, claiming that his threatening letter constituted a protected litigation communication under the anti-SLAPP statute.

Nice try. The Supreme Court — in Flatley v. Mauro (2006) 39 Cal.4th 299, a case Hamzeh did not even bother to cite in his motion — had already decided that criminal extortion is not covered by the anti-SLAPP statute. Confronted by Flatley, Hamzeh resorted to claiming that at least he wasn’t as bad as that no-good defendant in Flatley, who sent a whole lot of threatening communications. The gist of his argument was “Compared to that guy in Flatley, I’m a boy scout; surely, the protection of the anti-SLAPP statute should be extended to me.”

The court did not buy it. Hamzeh’s conduct constituted criminal extortion as a matter of law because it coupled a demand for payment with a threat to accuse Mendoza of a crime and report him to authorities. Once that threshold is reached, it doesn’t matter whether the extortion is mild or extreme, the anti-SLAPP statute simply does not afford any protection:

We do not read Flatley to mean the anti-SLAPP statute applies to some litigation communications which satisfy the criteria for criminal extortion if such communications are not particularly extreme or egregious. The rule must be a bright line rule. The antiSLAPP statute does not apply to litigation communications which constitute criminal extortion as a matter of law.
Extortion is extortion. The degree might make a difference in a criminal sentence or in damages in a civil suit, but when it comes to anti-SLAPP protection, degree does not matter at all.

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