Judge: Michael Shultz, Case: 25STCV01665, Date: 2025-05-13 Tentative Ruling
Case Number: 25STCV01665 Hearing Date: May 13, 2025 Dept: 40
25STCV01665 Martin Berman v. Yaron Dunkel
aka Felix Dunkel
Tuesday,
May 13, 2025
[TENTATIVE] ORDER
I.
BACKGROUND
The
complaint alleges that Defendant’s relatives hired Plaintiff, an attorney, to represent Defendant’s family trust and business, Crown
Coachworks, Inc. in an action against Honda Motor Company, Inc. for fire
related damage to the business allegedly caused by a defective battery in a
Honda Accord. Plaintiff filed the action
and obtained a $100,000 settlement.
Defendant
allegedly owed Plaintiff a balance of $105,513.44 in attorney’s fees and costs.
Defendant, also an attorney, corresponded with Plaintiff about the action on
behalf of Crown Coachworks, Inc. Plaintiff demanded arbitration of the fee
dispute. In response, Defendant sent Plaintiff an email on January 1, 2025,
that threatened to report Plaintiff to the State Bar unless Plaintiff ceased
collection efforts. Plaintiff alleges one cause of action for extortion based
on the January 1, 2025, email.
II.
ARGUMENTS
Defendant
moves to strike the entire complaint on grounds the entire action is based on
Defendant’s email to Plaintiff, which is a protected pre-litigation activity.
Plaintiff will not be able to show a probability of prevailing on the merits. Defendant
requests attorney’s fees.
In
opposition, Plaintiff argues that extortion is not protected activity, and
therefore, not subject to the anti-SLAPP statute. Defendant’s case authority
does not negate Defendant’s illegal conduct. Defendant is not entitled to
attorney’s fees because the motion is frivolous.
In
reply, Defendant argues that Plaintiff has mischaracterized the email as
criminal conduct. The case on which Plaintiff relies is limited and has no
application here. Plaintiff does not attempt to meet his burden of showing a
probability of prevailing on the merits.
III.
LEGAL STANDARDS
The anti-SLAPP statute[1]
codified at Code of Civil Procedure section 425.16 provides that any act of a
person “in furtherance of the person's right of petition or free speech under
the United States Constitution or the California Constitution in connection
with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established a probability that the
plaintiff will prevail on the claim." (Code Civ. Proc., § 425.16(b).) The statute provides a procedure for
"weeding out, at an early stage, meritless claims arising from
protected activity."(Baral
v. Schnitt (2016) 1 Cal.5th 376,
384.)
The type of conduct that falls within the
scope of protected activity is statutorily defined as:
"
(1) any written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding authorized
by law, (2) any written or oral statement or writing made in connection with an
issue under consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a
place open to the public or a public forum in connection with an issue of
public interest, or (4) any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16 subd. (e).)
As the moving party, Defendant
bears the initial burden of establishing that the challenged allegations or
claims “arise from protected activity in which the defendant has engaged."
(Bonni
v. St. Joseph Health System (2021)
11 Cal.5th 995, 1009; Code Civ. Proc., § 425.16 subd. (b).) To that end, courts are
to “consider the elements of the challenged claim and Defendants’ actions that
supply those elements and consequently form the basis for liability.” (Id. ["In making its
determination, the court shall consider the pleadings, and supporting and
opposing affidavits stating the facts
upon which the liability or defense is based"] [emphasis added].)
If the first prong is met, the second
prong of anti-SLAPP analysis requires Plaintiff to demonstrate a probability of
prevailing on the merits. The standard is met if the plaintiff can make a prima facie showing that would support judgment “if proven at trial.” (Siam
v. Kizilbash (2005) 130
Cal.App.4th 1563, 1570.)
Plaintiff must submit admissible evidence that would be sufficient to sustain a
favorable judgment if credited. (McGarry
v. University of San Diego (2007)
154 Cal.App.4th 97, 108.)
The court considers the pleadings and the evidence submitted by the parties,
however, “the court cannot weigh the evidence.” (McGarry
at 108.) The court must accept as true the
evidence favorable to the plaintiff. (Soukup
v. Law Offices of Herbert Hafif
(2006) 39 Cal.4th 260, 291.)
Plaintiffs need only establish that their claims have “minimal merit.” (Soukup
at 291.)
IV.
DISCUSSION
A.
First
prong
There is no dispute that the only cause
of action for extortion is based on a letter Defendant allegedly sent to
Plaintiff in response to Plaintiff’s demand for arbitration. The letter:
“threatened that
Defendant would make a report to the State Bar, and also send the State Bar
copies of emails authored by Plaintiff, unless Plaintiff agreed to stop all
efforts to collect those costs due to Plaintiff from the Dunkels as set forth
in the written retainer agreement, and conditioned on Plaintiff agreeing to
dismiss all of his efforts to collect money justly due to Plaintiff pursuant to
his amended written retainer agreement with the Dunkels, and the costs he
incurred on their behalf, as specified above in Paragraph 12. Said conduct of
Defendant Felix constituted a violation of California Rules of Professional
Conduct, Rule 3.10, by threatening to present disciplinary charges against
Plaintiff in order to obtain an advantage in the fee dispute arbitration that
Plaintiff had previously initiated.” (Complaint, ¶ ¶ 15.)
Defendant contends that the letter is
protected pre-litigation communication while Plaintiff contends that extortion
is not protected speech. Protected speech is immune from liability in pertinent
part "if it has ‘some relation’ to judicial proceedings." (Contemporary
Services Corp. v. Staff Pro Inc.
(2007) 152 Cal.App.4th 1043, 1055.) The letter related to Plaintiff’s demand for fee arbitration in
order to collect Plaintiff’s fees and costs, which qualifies as litigation-related
activity. (Optional
Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95 [“ ‘Under the plain language of section
425.16, subdivisions (e)(1) and (2), as well as the case law interpreting
those provisions, all communicative acts performed by attorneys as
part of their representation of a client in a judicial proceeding or other
petitioning context are per se protected as petitioning activity by the
anti-SLAPP statute.’” [Emphasis in original].].)
Communication that constitutes illegal
conduct is not protected activity and is therefore, not subject to a special
motion to strike. Criminal extortion is defined as obtaining property “or other
consideration” from another without consent and induced by wrongful use of force
or fear, such as by a threat to accuse an individual of a crime, or to expose
or impute to that person any “deformity, disgrace, or crime.” (Pen. Code, §
518.) “Consideration” is defined as
“anything of value.” (Id. subd. (b).) If the illegality is conclusively
shown by the evidence, the motion must be denied. (Flatley v. Mauro (2006) 39
Cal.4th 299, 316.)
The
parties do not factually dispute the contents of Defendant’s letter, only its
characterization. Contrary to Defendant’s contention, the complaint is not
based solely on a violation of the State Bar Rules of Professional Conduct.
Plaintiff alleges civil extortion, which is demonstrated by the letter itself.
Defendant
contends that the letter did not demand money, and therefore, cannot be
considered extortion. However, in Cohen v. Brown (2009)
173 Cal.App.4th 302 cited by Plaintiff, the Cohen
court
cited Flatley for the proposition that "the threat made by
an extortionist does not have to succeed in producing an exchange of money in
order to constitute extortion." (Cohen at 318.) Cohen also held that
threatening to report an attorney to the State Bar unless the attorney signed a
settlement check without condition was extortionate. (Cohen at 315).
As
Plaintiff observes, the “bargain” was Plaintiff’s agreement to surrender his
fees or Defendant would report Plaintiff to the State Bar (ie., expose
Plaintiff to “deformity or disgrace.”). (Penal Code § 518.). The property or
consideration (“anything of value”) was Plaintiff’s agreement to give up his
fees – the surrender of property.
As
Plaintiff also alleged, Defendant threatened to report Plaintiff unless
Plaintiff agreed to resolve all claims, and Defendant would release Plaintiff
from claims for fraud, concealment, misrepresentation, breach of fiduciary
duty, conflict of interest, fraudulent inducement and negligence (threats to
expose Plaintiff of other disgrace). (Berman decl., Ex. 11.)
B.
Second prong.
The
court’s analysis does not reach this step because Defendant did not meet his
threshold burden that the complaint arises from protected activity. The burden
does not shift to plaintiff to show a probability of prevailing on the merits
since the first prong was not met. (Cohen v. Brown (2009) 173
Cal.App.4th 302, 319 [""Having determined that Brown's stated
basis for relief under section 425.16 is not viable, we need not reach the
question as to whether plaintiff has made a prima facie showing that he can
prevail on any of his various causes of action." ].)
V.
CONCLUSION
Based
on the foregoing, Defendant’s Special Motion to Strike is DENIED.