Judge Randolph M. Hammock, Case 22STCV19747 2023-04-26 Tentative Ruling

Judge: Randolph M. Hammock, Case: 22STCV19747, Date: 2023-04-26 Tentative Ruling

Plaintiff Tom Maksemous attended the same high school as Defendant Jazmin Escobar. Nearly a decade after graduating, the two connected on the internet dating website OKcupid.com. In a message to Defendant Escobar, Plaintiff made a sexual reference and commented on Defendant’s weight. In response, Escobar took a screenshot of the conversation and posted it to her Tumblr blog. Plaintiff later learned that the screenshot depicting his lewd messages could be found by a Google search. Plaintiff now brings this action against Defendant Escobar and Tumblr’s owner, Defendant Automattic, Inc.

“The anti-SLAPP procedures are designed to shield a defendant’s constitutionally protected conduct from the undue burden of frivolous litigation.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.) “The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.” (Id. at 384.)

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at 384, citation omitted.) The California Supreme Court has “described this second step as a ‘summary-judgment-like procedure.’ The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. ‘[C]laims with the requisite minimal merit may proceed.’” (Id. at 384-385 [citations omitted].) The anti-SLAPP motion need not address what the complaint alleges is an entire cause of action, and may seek to strike only those portions which describe protected activity. (Id. at 395-396.)

Plaintiff alleges that he and Defendant Jazmin Escobar connected on the dating website Okcupid.com sometime in 2014. (FAC ¶¶ 14, 16.) The two apparently exchanged messages for a period. On or about April 18, 2015, Defendant posted a screenshot of a conversation between her and Plaintiff on her tumblr blog. Plaintiff’s message(s) stated that he would “just masturbate himself into a coma” and told Plaintiff she should “[j]ust get a sleeve gastrectomy and get on with [her] life.” (Id. ¶ 22.) Defendant captioned the screenshot with the text: “I was really struggling with this response today. I went to high school with Tom Maksemous. He was always kind. He found me on OKC [dating website OKCupid] and when I didn’t want to be his sexual play thing, THIS is how he treated me. #BYEFELIPE.” (Id. ¶ 23.)

Plaintiff further alleges he had no knowledge of the post until on or around February 3, 2022, when “several of his former coworkers” told him the post could be found by a Google search. (Id. ¶ 25.) Both Defendant Escobar and Defendant Automattic, Tumblr’s owner, have refused to remove the post. This action followed.

On February 9, 2022, this court allowed Plaintiff leave to file a First Amended and Supplemental Complaint. (See 02/09/2023 Order.) As relevant to this motion, Plaintiff added a seventh cause of action for “Civil Extortion in violation of California Penal Code section 524.” Plaintiff alleges that “[f]ollowing the filing of this complaint, Defendant Escobar through attorney Jill David, threatened Plaintiff with an e-mail demand for thousands of dollars in order to remove the offensive Tumblr post.” (FAC ¶ 91.) It is further alleged that Defendant Escobar “knew that the blog post harmed the threatened Plaintiff’s reputation or other interest so greatly that he would be likely to give up thousands of dollars for its removal,” and therefore “used the fear of the continued posting of the offensive blog post to obtain an item of value.” (Id. ¶¶ 94, 95.)

To satisfy the first prong of the two-prong test, a movant defendant must demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the defendant’s right of petition or free speech under the United States or California Constitution in connection with a public as defined in the statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67; see City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [“[i]n the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech”].)

As relevant here, section 425.16, subdivision (e)(2) protects “any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body ....” (§ 425.16, subd. (e)(2), italics added.) This section “do[es] not require the defendant to show a public issue or issue of public interest. [Citation]….Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.” (Vergos v. McNeal (2007) 146 Cal. App. 4th 1387, 1395.)

Courts have adopted an “expansive view of what constitutes litigation-related activities within the scope of section 425.16.” (Neville v. Chudacoff (2008) 160 Cal. App. 4th 1255, 1268; Cabral v. Martins (2009) 177 Cal.App.4th 471, 480, 99 Cal.Rptr.3d 394 [“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”].)

It appears well-settled that settlement negotiations are considered to be “made in connection with an issue under consideration or review by…a judicial body.” (§ 425.16, subd. (e)(2); O&C Creditors Grp., LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal. App. 5th 546, 566–67 [settlement agreement was protected activity]; Navellier v. Sletten (2002) 29 Cal.4th 82, 85–86, 87 [finding defendant's negotiations and execution of release to be protected activity]; Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 958, 963–967 [reversing denial of anti-SLAPP motion in homeowner's action for fraud in connection with settlement negotiations in underlying lawsuit]; GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 171 Cal.App.4th 901, 908 [affirming grant of anti-SLAPP motion in lawsuit based on firm's communication of settlement offer].)

However, the anti-SLAPP protection “does not extend to communication or conduct that is, as a matter of law, illegal.” (Geragos v. Abelyan (2023) 88 Cal. App. 5th 1005, 1023.) Extortion is not a constitutionally protected form of speech. (Flatley, supra, 39 Cal.4th at p. 328.) The Penal Code defines extortion to include “the obtaining of property or other consideration from another, with his or her consent, ... induced by a wrongful use of force or fear.” (Pen. Code, § 518, subd. (a).) Fear, for purposes of extortion, “may be induced by a threat of any of the following: [¶] (1) To do an unlawful injury to the person or property of the individual threatened or of a third person. [¶] (2) To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime. [¶] (3) To expose, or to impute to him, her, or them a deformity, disgrace, or crime. [¶] (4) To expose a secret affecting him, her, or them. [¶] (5) To report his, her, or their immigration status or suspected immigration status.” (Pen. Code, § 519.) “Only threats that fall within one of these [five] categories of section 519 [constitute] extortion.” (People v. Umana (2006) 138 Cal.App.4th 625, 639.)

In Flatley v. Mauro (2006) 39 Cal.4th 299, a case cited by Plaintiff, the Supreme Court of California addressed whether extortion was protected speech subject to an anti-SLAPP motion. The court answered this in the negative, “conclud[ing] that, consistent with the legislative intent underlying the anti-SLAPP statute as revealed by the statutory language, and consistent with our existing anti-SLAPP jurisprudence, a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff's complaint.” (Flatley v. Mauro (2006) 39 Cal. 4th 299, 305.) The Court emphasized it was dealing with “specific and extreme circumstances” where an attorney made “threats to publicly accuse Flatley of rape and to report and publicly accuse him of other unspecified violations of various laws unless he ‘settled’ by paying a sum of money.” (Id. at 329.) The Court found that “the threat to disclose criminal activity entirely unrelated to any alleged injury suffered by [the attorney’s] client ‘exceeded the limits of respondent's representation of his client’ and [was] itself evidence of extortion. [Citation.]” (Id. at 330–331.)

The Flatley Court made clear that the “question of whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and 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.” (Id. at 320; see also Falcon Brands, Inc. v. Mousavi & Lee, LLP (2022) 74 Cal.App.5th 506.) Accordingly, this “preliminary step” required the Court to analyze the threats at issue and determine if they were extortionate.

However, Flatley is a narrow exception, as “[i]t applies only ‘where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence.’” (Finton Constr., Inc. v. Bidna & Keys APLC (2015) 238 Cal. App. 4th 200, 210–11.) Where a Plaintiff does not conclusively establish the illegality of the conduct, the conduct falls within the reach of the anti-SLAPP statute absent some other grounds for excluding it. (Id.)

In Malin, a case more in line with the facts here, the Court found an attorney communication was not extortion as a matter of law in prong one. (Malin v. Singer (2013) 217 Cal. App. 4th 1283, 1299.) The Court noted a “critical distinction” between its facts and those in Flatley, because the threats in Flatley had “no reasonable connection to the underlying dispute.” (Id.) But in its case, “the ‘secret’ that would allegedly expose [the plaintiff] to disgrace was inextricably tied to [the client’s] pending complaint.” (Id.)

Here, there is no “uncontroverted” or “conclusive” evidence that Defendant’s conduct constituted extortion, nor has Defendant conceded the point. (See Flatley, supra, 39 Cal.4th at p. 320.) To the contrary, the evidence firmly demonstrates the underlying conduct is not extortion at all.

The “protected activity” at issue is Defendant Escobar’s attorney, Jill David, purportedly “threaten[ing] Plaintiff with an e-mail demand for thousands of dollars in order to remove the offensive Tumblr post.” (FAC ¶ 91.) On July 21, 2022, David sent an email and mail communication to Plaintiff titled “Privileged and Confidential Settlement Communication.” (David Decl., Exh. 1.) The letter largely communicated Defendant’s position that the action was without merit, and then concluded:

“In the interests of cost-effective termination of this lawsuit, Escobar is willing to accept $3,000 in exchange for dismissal of your lawsuit and removal of the 2015 posting. Please note that as a condition precedent to such agreement, Escobar will need to regain access to her blog.”

Unlike Flatley but much like Malin, the “threat” here (e.g. keeping the post on the internet absent a payment) is not “entirely unrelated” to the underlying representation. Just the opposite. Defendant made the money-demand in exchange for removal of the post that provoked this action in the first place. Had Plaintiff given in to the “extortion,” he would have paid money in exchange for exactly what he seeks from this lawsuit: removal of the post in question. But, because he declined to make the payment, the only consequence is that the lawsuit continues and the post remains visible online. Thus, the potential exposure is “inextricably tied to [Plaintiff’s] pending complaint.” (Malin, supra, 217 Cal. App. 4th at 1299.) The demand here represents nothing more than a routine settlement negotiation. Plain and simple. (See Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 836 [“[w]e read Flatley as permitting a finding of extortion as a matter of law only where an attorney's threats fall wholly outside the bounds of professional norms.”].)

Indeed, at the time Plaintiff received the offer, even he apparently did not view it as “extorting” him. Rather, Plaintiff responded to the settlement offer and presented a counteroffer where “no money is exchanged between the parties.” (David Decl, Exh. 2.) A few days later, Plaintiff indicated in another email that he was “prepared to offer settlement money,” but that the $3000 demand would “be extremely difficult to fulfill in such a short period of time.” (Id.) Instead, Plaintiff indicated he was “prepared to offer $500 by Friday 29th, 2022” if Defendant removed the post. (David Decl., Exh. 3.) Defendant declined this offer. (Id.)

Finally, Plaintiff’s contention that Defendant violated California Penal Code section 632.7 with her Tumblr post is without merit. That section provides “(a) Every person who, without the consent of all of the parties to a communication, intercepts or receives and intentionally records, or assists in the interception or reception and intentional recordation of, a communication transmitted between two cellular radio telephones, a cellular radio telephone and a landline telephone, two cordless telephones, a cordless telephone and a landline telephone, or a cordless telephone and a cellular radio telephone, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or by imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.” (Penal Code § 632.7.)

Plaintiff cites no case authority addressing section 632.7, much less any suggesting that screenshotting and then posting messages exchanged on a dating website might fall within its purview. Moreover, it would not be “objectively reasonable” for Plaintiff to believe the conversation was private at the time he sent the messages. (See Flanagan v. Flanagan (2002) 27 Cal. 4th 766, 774.)

Accordingly, the claim does not meet the narrow Flatley exception of unprotected unlawful extortion. The activity is therefore a protected “writing made in connection with an issue under consideration or review by [a] judicial body.” (CCP § 425.16, subd. (e)(2).) Accordingly, Defendant has met her burden under prong one.

The burden of showing a probability of prevailing on the claim rests with Plaintiff. “To establish a probability of prevailing, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. For purposes of this inquiry, the 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. In making this assessment it is the court’s responsibility…to accept as true the evidence favorable to the plaintiff […]. The plaintiff need only establish that his or her claim has minimal merit to avoid being stricken as a SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.) In the present case, the extortion cause of action lacks any merit whatsoever, let alone “minimal” merit.

First, as to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim “may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.” (Sweetwater Union High Sch. Dist. v. Gilbane Bldg. Co. (2019) 6 Cal. 5th 931, 940 [emphasis added]; Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 213–214 [“[a]n anti-SLAPP motion is an evidentiary motion.”].)

Plaintiff submits two exhibits with his motion but has not submitted any declaration attesting to their authenticity or veracity. Evidence that lacks a proper foundation may be excluded in connection with an anti-SLAPP motion. (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal. App. 4th 1424, 1444.) This fact alone is likely enough to defeat Plaintiff’s showing in prong two. (See Vergos v. McNeal (2007) 146 Cal. App. 4th 1387, 1403 [granting anti-SLAPP motion where plaintiffs failed to offer evidence to support their claims in prong two]; Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal. App. 4th 1539, 1554 [same]; State Farm Mut. Auto. Ins. Co. v. Fue Lee (2011) 193 Cal. App. 4th 34, 40 [same].)

Second, as argued by Defendant—and unaddressed by Plaintiff—her attorney’s communication here is protected by the litigation privilege. “The litigation privilege, codified at Civil Code section 47, subdivision (b), provides that a ‘publication or broadcast’ made as part of a ‘judicial proceeding’ is privileged. This privilege is absolute in nature, applying ‘to all publications, irrespective of their maliciousness.’ [Citation.] ‘The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that [has] some connection or logical relation to the action.’” (Kenne v. Stennis (2014) 230 Cal. App. 4th 953, 964.) “[T]he privilege is ‘an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution.’ (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926–927 [plaintiff must overcome litigation privilege to demonstrate a probability of prevailing under anti-SLAPP prong two].)

“[T]he principal purpose of [Civil Code] section 47 [, subdivision (b) ] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” (Id.) “The breadth of the litigation privilege cannot be understated.” (Finton Constr., Inc. v. Bidna & Keys, APLC (2015) 238 Cal. App. 4th 200, 212.) “Any doubt about whether the privilege applies is resolved in favor of applying it. [Citation.]” (Id.)

The communication here giving rise to the extortion claim was undoubtedly a publication as part of a judicial proceeding. The communication was made in a letter to Plaintiff from Defendant’s counsel, Jill David, titled “Settlement Communication.” (See David Decl., Exh. A.) The letter discussed the perceived merits of the complaint and concluded with an offer to settle the matter. (Id.) To reiterate, that “extortion” merely stated that Defendant “is willing to accept $3,000 in exchange for dismissal of [Plaintiff’s] lawsuit and removal of the 2015 posting.” (Id.) David concluded that Plaintiff should “[l]et [her] know [his] position by July 28, 2022, or [they] will move forward with [Defendant’s] defense.” (Id.)

This was nothing more than a routine, non-extortionate offer to settle the matter. It is therefore protected by the litigation privilege, and thus, the privilege bars the seventh cause of action for extortion. (See Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma (1986) 42 Cal.3d 1157 [applying litigation privilege to statements made during settlement negotiations].)

Finally, and as discussed more fully above in the first prong and incorporated here, this court also finds the conduct here does not amount to extortion as a matter of law, even when this Court accepts everything Plaintiff has alleged as true, and moreover, even without applying the litigation privilege.

Once again, this Court will attempt to share certain viewpoints with the Plaintiff in the hope that upon calm and sober reflection, he will reconsider his current path of seeming self-destruction. Unfortunately, as in this Court’s past two attempts to do so, it is sadly and likely to continue to fall upon deaf ears.

This Court can understand why the Plaintiff may be personally upset at this unfortunate and embarrassing “post.” The fact is, though, that it is merely a post, in substantial part, of the Plaintiff’s own words. (And ironically, they appear to be the same phrase the Defendant herself previously utilized.) Be that as it may, having a license to practice law does also carry some duty to act in a responsible fashion. Of course, each of us do possess a fundamental right to address our grievances by filing a lawsuit, if needed and warranted.

An unbiased bystander could reasonably suggest that perhaps this lawsuit is an unwarranted and immature overreaction by the Plaintiff. This Court suggests that, at most, this case belongs in the Small Claims Division of this Court, if in court of law at all. Moreover, this case certainly does not need nor warrant seven (now six) separate causes of action, which are all based upon this post. In the realm of our modern world of social media, Tic-Toc, Instagram, Twitter, and online dating sites, which include such actions as “ghosting” and “catfishing,” this particular event seems rather lame.

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.