Judge: John J. Kralik, Case: 22STCV20071, Date: 2023-05-05 Tentative Ruling

Case Number: 22STCV20071    Hearing Date: May 5, 2023    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Michael L. Zinna (“Plaintiff”) alleges that he has conducted legitimate business for more than 35 years and has pioneered technology and produced thousands of hours of media content.  He alleges that Defendant Douglas Olssan (“Defendant”) is an actor with “little professional success” and has a history of suing producers over unsuccessful business relationships.  (Compl., ¶7.)  Plaintiff alleges that he and Defendant were acquaintances in 2015 in the entertainment industry and that Defendant invested in one of Plaintiff’s television projects.  He alleges a dispute arose between them, such that Defendant filed a lawsuit against Plaintiff in 2016, which was dismissed in February 2018.  Plaintiff is informed and believes that Defendant began retaliating against him, engaged in extortion to destroy Plaintiff’s business and life, and created an online persona posing as a “vigilante” on his website, wherein he portrayed himself as a crime-fighter and Plaintiff was portrayed as a criminal/villain.  (Id., ¶10.)  Plaintiff alleges that between March 10, 2021 and April 20, 2021, Defendant sent a series of emails intending to extort $130,000 from Plaintiff by threatening to making a criminal report about Plaintiff.  (See id., ¶11.) 

The complaint, filed June 20, 2022, alleges causes of action for: (1) IIED; (2) civil extortion; and (3) negligence.

B.     Motions on Calendar

On August 31, 2022, Defendant filed a demurrer to the 1^st and 2^nd causes of action in the complaint.  On October 19, 2022, Plaintiff filed an opposition brief. 

            On April 5, 2023, Defendant filed 2 motions to compel Plaintiff’s responses to: (1) Form Interrogatories, set one (“FROG”); and (2) Requests for Production of Documents, set one (“RPD”).  The Court is not in receipt of an opposition brief.  

            The Court notes that on February 17, 2023, the Court granted the motion to be relieved as counsel filed by Neil M. Sunkin, Plaintiff’s then-counsel.  Thus, Plaintiff is currently not represented by counsel.

DISCUSSION RE DEMURRER

            Defendant demurs to the 1^st and 2^nd causes of action in the complaint. 

A.    IIED (1^st cause of action)

The elements of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff suffered severe or extreme emotional distress; and (4) the plaintiff’s injuries were actually and proximately caused by the defendant’s outrageous conduct.  (Vasquez v. Franklin Mgmt. Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.)  In order to avoid a demurrer, the plaintiff must allege with great specificity, the acts which she believes are so extreme as to exceed all bounds of behavior usually tolerated in a civilized community.  (Id.)

Conduct to be outrageous must be so extreme as to exceed all bounds of behavior usually tolerated in a civilized community.  (Christensen v. Superior Court (1991) 54 Cal.3d 868, 903.)  In addition, the outrageous conduct must be of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.  (Id.)  “Although emotional distress may consist of any highly unpleasant mental reaction such as fright, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment or worry [citation], to make out a claim, the plaintiff must prove that emotional distress was severe and not trivial or transient.”  (Wong v. Tai Jing (2010) 189 Cal.App.4th 1354, 1376.)  Such distress must be “of such substantial quality or enduring quality that no reasonable person in civilized society should be expected to endure it.”  (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1004.)

In the 1^st cause of action, Plaintiff alleges that Defendant sent a series of written emails between March 10, 2021 and April 20, 2021 intending to extort $130,000 from Plaintiff by threatening to make a criminal report.  (Compl., ¶17.)  Plaintiff alleges that Defendant wrongfully made “threats” to go to the authorities to blackmail Plaintiff.  (Id., ¶18.)  Plaintiff alleges that Defendant’s attempt to extort money from Plaintiff and threatening to make a criminal report about Plaintiff was an extreme and outrageous act and that Defendant engaged in this extortion intending to cause Plaintiff to suffer severe emotional distress.  (Id., ¶¶19-20.)   Plaintiff alleges that Defendant knew that such threats would cause Plaintiff emotional distress and that he would be in constant fear of his business career, personal relationships, blacklisting in the entertainment industry, and of criminal prosecution.  (Id., ¶21.)  Plaintiff also alleges that because he knew of Defendant’s “delusional vision” of himself being a vigilante, Plaintiff feared Defendant would carry out his threat.  (Id., ¶22.)   Plaintiff alleges he has suffered severe emotional distress in that he is in constant fear of being investigated, he feels overwhelmed by helplessness and hopelessness, he is constantly anxious and frustrated, suffers from depression and panic attacks, etc.  (Id., ¶23.) 

            Defendant demurs to the 1^st cause of action, arguing that the statements he made in an email were made to Plaintiff’s attorney and not to Plaintiff.  In his demurrer, he denies any involvement with the webpage, but the Court notes that this is an extrinsic argument that is outside the pleadings which cannot be considered at this time.  At the demurrer stage, the allegations of the complaint are taken as true.  

            While Plaintiff has alleged many facts in the complaint, he has not connected how the website Defendant created was in fact regarding Plaintiff.  At most, the complaint alleges that Plaintiff is informed and believes that Defendant created a villain, vilifying Plaintiff and portraying him as a criminal.  (Compl., ¶10.)  It is unclear if Plaintiff was actually identified as this villain, whether Defendant provided this website to Plaintiff to view so that it would cause Plaintiff emotional distress, or whether Plaintiff stumbled upon this website himself.  Further, as noted by Defendant, the emails from March 10, 2021 to April 20, 2021 were between Defendant and Plaintiff’s attorney, such that it does not appear that any of the written statements in the email were directed at Plaintiff himself.  (See id., ¶11.)  As such, the element of causation is missing in both scenarios. 

            At this time, the Court will sustain the demurrer to the 1^st cause of action.  As this is Plaintiff’s first attempt at the pleading, the Court will sustain the demurrer with leave to amend. 

B.     Civil Extortion (2^nd cause of action)

Penal Code, § 518(a) defines extortion as follows: “Extortion is the obtaining of property or other consideration from another, with his or her consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.”  Fear that will constitute extortion includes threatening to “expose, or to impute to him, her, or them a deformity, disgrace, or crime.”  (Penal Code, § 519(3).)  “Every person who, with intent to extort property or other consideration 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 property or other consideration were actually obtained by means of such threat.”  (Pen. Code, § 523(a).) 

In the 2^nd cause of action, Plaintiff alleges similar allegations as paragraphs 17-22 (summarized above).  (Compl., ¶¶27-31.)  In his emails to Plaintiff’s counsel, Defendant requested his $130,000 in funds back from Plaintiff and accused Plaintiff of defrauding him.  (Compl., ¶11.)  He allegedly threatened to report Plaintiff’s purported “fraud” to “the authorities.”  (Id.) 

“Ordinarily, a demand letter sent in anticipation of litigation is a legitimate speech or petitioning activity that is protected under section 425.16.”  (Malin v. Singer (2013) 217 Cal.App.4th 1283, 1293.)   However, “As the Supreme Court recognized in Flatley [v. Mauro (2006) 39 Cal.4^th 299], extortion ‘has been characterized as a paradoxical crime in that it criminalizes the making of threats that, in and of themselves, may not be illegal. “[I]n many blackmail cases the threat is to do something in itself perfectly legal, but that threat nevertheless becomes illegal when coupled with a demand for money.” [Citation.]’ [Citation.] Criminal extortion laws prohibit the wrongful use of threats to obtain the property of another, regardless whether a debt is actually owed.”  (Malin, supra, 217 Cal.App.4th at 1294.)  “When a demand for money is accompanied by a threat to report a crime, the demand may constitute criminal extortion, even if the threat is vaguely worded.”  (Id. at 1295.)  In Malin, the Court of Appeal did not find that the defendant’s letter constituted extortion because it did not expressly threaten to disclose the plaintiff’s alleged wrongdoings to a prosecuting agency or the public at large.  (Id. at 1298.)  In contrast, the Supreme Court if Flatley found that the defendant’s demand letter constituted civil extortion because it threatened to go public with rape allegations against the plaintiff that would be publicized in every place the plaintiff went for the rest of his life, would ruin him, and threatened to expose/turn over his personal information (immigration status, social security information, IRS and tax information, etc.) and any pertinent information and document in violation with the U.S. Federal Immigration, IRS, Social Security Administration, etc. and to all appropriate authorities, unless at least $1 million was turned over.  (Flatley, supra, 39 Cal.4th at 329.)

Whether extortion exists is determined on a case-by-case basis.  Here, as far as the Court can glean from the allegations of the complaint, the facts regarding the website and the communications between Plaintiff, Defendant and the attorney do not permit a determination based merely on the insufficiency of the pleadings. These statements may or may not constitute extortion in the context of the website and the previous lawsuit between the parties. However, this is better considered beyond the pleading stage.

At this time, the Court finds that the complaint alleges sufficient facts for a civil extortion claim.  The demurrer to the 2^nd cause of action is overruled.

DISCUSSION RE MOTIONS TO COMPEL

Defendant filed 2 motions to compel initial responses from Plaintiff for: (1) Form Interrogatories (“FROG”), set one; and (2) Request for Production of Documents (“RPD”), set one. 

On December 5, 2022, Defendant served on Plaintiff the discovery requests.  Defendant states that he provided 4 extensions to Plaintiff such that responses were due by March 27, 2023.  On March 28, 2023, defense counsel emailed Plaintiff stating that responses had not yet been received and requested that responses be provided by March 30, 2023.  As of the filing of the motions, Defendant states that he has not received responses from Plaintiff. 

Defendant’s unopposed motions to compel responses to the FROG and RPD are granted pursuant to CCP §§ 2030.290 and 2031.300.  Plaintiff is ordered to provide verified responses to Defendant’s discovery requests, without objections, within 20 days of notice of this order. 

Defendant requests sanctions against Plaintiff only.  (The Court notes that at the time the motions were filed on April 5, 2023, Plaintiff was not represented by counsel.  On February 17, 2023, the Court granted the motion to be relieved as counsel filed by Plaintiff’s then-counsel, Neil M. Sunkin.)  Defendant seeks $2,460 in sanctions for each motion filed (= 3 hours on the motion + 2 anticipated hours for the opposition/reply + 3 anticipated hours for the hearing, at $300/hour, plus $60 filing fees).  The Court will award sanctions to Defendant for filing these two motions, but in the reasonable amount of $1,200 as the motions are relatively simple motions to compel initial responses and essentially identical in form, plus $120 in filing fees. 

CONCLUSION AND ORDER

            Defendant Douglas Olssan’s demurrer to the 1^st cause of action in the complaint is sustained with 20 days leave to amend. Olssan’s demurrer to the 2^nd cause of action is overruled.

            Defendant’s motions to compel Plaintiff Michael L. Zinna’s initial responses to the form interrogatories and requests for production of documents are granted.  Plaintiff is ordered to provide verified responses to Defendant’s discovery requests, without objections, within 20 days of notice of this order.  Plaintiff is ordered to pay monetary sanctions in the amount of $1,320 to Defendant, by and through counsel, within 20 days of notice of this order.

Defendant shall provide notice of this order.