Bright Line Extortion Exception to Anti-SLAPP Statute

iStock_000004954568XSmall  The Second Appellate District adopts a bright line exception to the anti-SLAPP statute pursuant to the Supreme Court opinion in Flatley v. Muro: The statute does not apply to any litigation communications which constitute criminal extortion as a matter of law.

  What is extortion? Extortion is the consensual obtaining of money or property from another induced by a wrongful use of force or fear. Pursuant to Penal Code section 519 fear may be induced by a threat, either: 1) To do an unlawful injury to the person or property of the individual threatened or of a third person; or, 2) To accuse the individual threatened, or any relative of his, or member of his family, of any crime; or, 3) To expose, or to impute to him or them any deformity, disgrace or crime; or, 4) To expose any secret affecting him or them.

  Further, Penal Code section 523 provides that “[e]very person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in Section 519, is punishable in the same manner as if such money or property were actually obtained by means of such threat.”

  In Mendoza v. Hamzeh the court applied Flatley strictly in holding that a demand letter attorney Reed Hamzeh sent to Miguel Mendoza constituted extortion as a matter of law. The letter sought damages on behalf of Hamzeh’s client “exceeding $75,000, not including interest applied thereto, punitive damages and attorneys’ fees.” The letter then stated: “If your client does not agree to cooperate with our investigation and provide us with a repayment of such damages caused, we will be forced to proceed with filing a legal action against him, as well as reporting him to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, the Better Business Bureau, as well as to customers and vendors with whom he may be perpetrating the same fraud upon [sic].”

  In holding that the anti-SLAPP statute did not apply to the threats made in Hamzeh’s demand letter the court held that “Hamzeh’s threat to report criminal conduct to enforcement agencies and to Mendoza’s customers and vendors, coupled with a demand for money, constitutes ‘criminal extortion as a matter of law.’”

  The court reasoned that Flatley should not be read 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 anti-SLAPP statute does not apply to litigation communications which constitute criminal extortion as a matter of law.”


  I consult with clients and accept cases involving the anti-SLAPP statute, privilege, and the constitutional right of free speech. For other types of cases I accept, please consult the My Practice page. If you are seeking a legal consult or representation, please give me a call at 818.971.9409. – Michael Daymude

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