Fireman's Fund Ins. v. Black CA1/1 ( 2014 )

Filed 11/6/14 Fireman’s Fund Ins. v. Black CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
FIREMAN’S FUND INSURANCE
COMPANY,
Plaintiff and Respondent, A136603
v. (San Mateo County
DOMINIQUE BLACK, Super. Ct. No. CIV511997)
Defendant and Appellant.
Dominique Black submitted a claim to his insurer, Fireman’s Fund Insurance
Company. The claim was initially denied and, over the next couple of years, Black
communicated with company representatives through letters, emails, and telephone
conversations. In these communications, Black complained, often in vitriolic terms, that
Fireman’s Fund handled his claim improperly, engaged in illegal activities, and had ties
to the Nazi regime in Germany.
Fireman’s Fund sued Black alleging that his communications amounted to civil
extortion, interference with contractual relations, interference with prospective economic
advantage, and unfair business practices. Black responded by filing a special motion to
strike under Code of Civil Procedure section 425.16 (the anti-SLAPP1 motion). The trial
court denied the motion after finding that Black’s communications amounted to extortion
as a matter of law and were not constitutionally protected.
1
SLAPP is an acronym for “strategic lawsuit against public participation.”
1
We affirm the denial of the anti-SLAPP motion. But unlike the trial court, we
conclude that Black’s communications did not amount to extortion as a matter of law,
and at least some of them were constitutionally protected. We nonetheless affirm the
denial of the anti-SLAPP motion because Fireman’s Fund’s claims have at least minimal
legal merit under the facts established thus far in the proceedings. We otherwise take no
position on the strength of these claims.
FACTUAL AND PROCEDURAL
BACKGROUND
This case arose as a result of a claim Black submitted to Fireman’s Fund for losses
incurred on a “vintage” motor home he purchased in 1999 for $26,000. The losses were
allegedly extensive. Black alleged that he delivered the motor home to a company,
Northern California Classic GMC Service (NorCal), to be restored and modified. He
alleged that NorCal failed to complete the work and abandoned the vehicle after being
paid more than $250,000. Black eventually regained possession of the motor home and
filed a suit against NorCal and its owners and associates for fraud, breach of contract, and
common counts. After settling with NorCal’s owners for $116,000, Black obtained a
default judgment against the remaining defendants for more than $323,000.
In the insurance claim submitted to Fireman’s Fund, Black asked for over
$215,000 for the vehicle’s replacement costs, including amounts paid for work not
performed and parts not installed, as well as for court costs in his suit against NorCal. An
appraiser with Fireman’s Fund inspected the motor home and found no evidence of
vandalism or theft of parts and concluded the vehicle’s poor condition was the result of a
“renovation gone bad.” Fireman’s Fund contended that the motor home was worth only
about $6,000 when Black regained possession of it and that Black’s policy did not cover
2
losses from uncompleted work, uninstalled parts, or court costs. Accordingly, in May
2010, Fireman’s Fund initially denied Black’s claim.2
This denial, however, far from resolved the matter. Over the next two years,
Black continued to demand full payment of his claim, and Fireman’s Fund repeatedly
reconsidered it. During this time, the parties engaged in a contentious exchange of
writings, mostly emails, and the content of these communications forms the basis of
Fireman’s Fund’s suit against Black. Most of the emails were between Black and Don
Lesser, an attorney retained by Fireman’s Fund to serve as the point of contact for Black,
with copies sent to others.
In the communications, Black asserted extensive grievances against Fireman’s
Fund. Among other things, he accused the company of improperly checking his business
credit history and other records, requiring him to fill out a vehicle-theft affidavit, and
exchanging his policy for another one with a lower policy limit.3 He also claimed
Fireman’s Fund was engaged in illegal money laundering by cancelling customer policies
and substituting them with less desirable, more expensive policies.
Black was also troubled by the business and financial affairs of Fireman’s Fund’s
parent company, Allianz SE (Allianz),4 which he believed had been aligned with the Nazi
regime in Germany. He investigated purported misdeeds by Allianz during the
Holocaust, and he implied to Lesser that Allianz never paid off on insurance policies that
the company had issued to Jewish policyholders who were killed in concentration
2
Early in the claims process, Fireman’s Fund asked for proof the vehicle had been
vandalized, but Black provided only a copy of the default judgment. Fireman’s Fund told
Black the default judgment did not indicate whether, how, or in what amount the vehicle
was actually damaged. Black countered that the default judgment was all the proof he
needed.
3
Fireman’s Fund filed a declaration indicating there was no difference in coverage
between the two policies.
4
Allianz, the parent of Fireman’s Fund, is based in Germany, and is a global
insurer.
3
camps.5 Black claimed that, like Allianz, Fireman’s Fund engaged in wide-ranging
financial and other improprieties.
Even before his claim was denied, Black sent a letter to the company’s director of
automobile claims, copying other personnel, threatening to file a complaint with the
California Department of Insurance (CDI), to use “social media to facilitate a viral
consumer brand awareness campaign about Allianz’s history of ‘evil and corruption’ in a
global boycott of Allianz products and stock until [Fireman’s Fund] corrects its conduct,”
and to pursue civil litigation “after this campaign.” (Italics added.) In the later onslaught
of emails, Black frequently referred to the Allianz-Nazi connection. In a declaration
Lesser submitted in connection with the anti-SLAPP motion, Lesser stated that in
telephone conversations Black repeated his threats to launch a “social media campaign”
against Fireman’s Fund and to associate it with Nazis. According to Lesser, Black
avowed this would injure Fireman’s Fund reputation, reduce the company’s stock prices,
and create problems for the company’s senior executives. Lesser also declared that Black
told him that he (Black) would not launch his campaign if Fireman’s Fund paid the
$215,000 he was demanding.
Black’s methods and persistence succeeded in getting Fireman’s Fund repeatedly
to reconsider his claim. In the latter part of 2010, Fireman’s Fund assigned the claim to a
new adjuster, but this adjuster concluded that Black’s claim could not be paid under the
terms of the policy. In April 2011, Fireman’s Fund assigned the claim to yet another
claims adjuster. That same month, Black wrote to Lesser, “This matter is epic, five years,
seven volumes documenting greed, negligence, fraudulent concealment and finally,
malicious, oppressive acts of banal evil by” three named Fireman’s Fund employees. He
5
For example, on October 3, 2011, Black sent an email to Lesser that included the
following paragraph: “When your client’s insureds[] illegally left the jurisdiction of the
policy issuing country, Germany, in violation of either contract or prevailing law; These
‘insured scofflaws’ were stripped of their policy rights.—They had improperly relocated
to a Polish village named Auschwitz to be first-time users of Zyklon B, a state of the art
product— produced by another Allianz customer for a local processing facility,—
managed in part by an Allianz insured workforce.”
4
warned that those employees could be liable under the state’s unfair competition law. A
couple of months later, Black sent an email to the new claims adjuster and vowed to
“escalate this issue to additional controlling authorities once it has been clearly rejected
by you as submitted by me.” (Underlining in original.)
In August 2011, Black sent an email to Lesser riddled with Nazi-related
accusations against Allianz, Fireman’s Fund, and their employees, including that Allianz
and Fireman’s Fund had a policy of “CLAIMS EXTERMINATION.” A few days after
this email, Black sent Lesser a banner he had designed to accompany his proposed social
media campaign which had the words: “ALLIANZ-FFIC EXTERMINATES CLAIMS”
superimposed over other images, including a swastika.
In late September 2011, Black sent another email to Lesser, 18 Fireman’s Fund
employees, and the CEO of Allianz identifying Fireman’s Fund’s general counsel and
calling for her to be “replace[d].” He asserted that the general counsel and another
attorney in her office were “ ‘despicable’ ” and “ ‘no better than the Nazi collaborators
who control them.’ ” He also stated that they “ ‘favored drug dealers over their
insured,’ ” “ ‘ratified corporate criminal conduct in order to conceal [Fireman’s Fund’s]
breaches of contract and fraud,’ ” and were “willing to throw their insured into a modern
gulag in order to cover up their violations and improve their quality assurance metrics.”
Black demanded the “ ‘discipline’ ” or the firing of other Fireman’s Fund employees.
The following day, Black wrote yet another email, this time to the company’s
chief executive officer (CEO) and others, calling for the removal of the company’s
general counsel from the board of directors and also repeating his threat to create a
“social network of 500,000,” to mount a “raw and hard hitting campaign” with the goal
of “bring[ing] notice of and reform to the immoral conduct of renegade Allianz
executives.” In response to some of these charges, Lesser warned Black that his
statements “constitute[d] libel, slander and/or trade libel.”
5
A few days after his email to the CEO, Black again wrote to Lesser, this time
raising concerns about methamphetamine contamination in the motor home.6 He also
charged that Allianz and Fireman’s Fund were “under the control of former NAZI
collaborators,” and that Fireman’s Fund employees acted like “NAZI’s from the
insurance industry” and had used “totalitarian tactics reminiscent of past Allianz
executives,” while engaging Black in a “war of extermination.” He accused one of the
lawyers from Fireman’s Fund of “threaten[ing] to launch [a] legal extermination
campaign to muzzle [his] grievance.” He threatened to “publically [sic] unmask[]”
members of a “renegade . . . unit” of Fireman’s Fund, who he claimed had “targeted” his
family.
At the end of September 2011, Fireman’s Fund sent Black a check for $8,994.95
for reimbursement of lost or stolen parts from the motor home and some of Black’s
towing and storage costs. Black refused to accept it. Around this time, he sent a
photocopy of a Web page design he intended to launch titled, “AllianzWatch . . . a voice
for the consumer and investor,” which included the banner with a swastika, and with the
following lead in: “De-Nazified 65 years ago. . . . Has the beast returned in Fireman’s
Fund[?]”
In late 2011, Fireman’s Fund again reconsidered Black’s claim. But in mid-
January 2012, Fireman’s Fund informed Black in a 12-page letter that it had not found
any evidence the motor home suffered additional physical loss or damage covered by his
policy. Black responded with an offer to settle the claim for $147,000, saying he would
hold the offer open until January 27. On January 27, Black told Lesser he was
“escalating [his] concerns” to the president and CEO.
Around this time, Fireman’s Fund apparently decided that it had had enough. In
February 2012 it brought two cases against Black. First, it filed a petition to prevent
6
Because Black claimed that methamphetamines or other toxins had contaminated
the vehicle, Fireman’s Fund retained a credentialed forensic industrial hygiene firm to
test surfaces within the vehicle. It appears, however, that Black would not give the firm
access to his motor home to conduct the inspection.
6
workplace violence under Code of Civil Procedure section 527.87 in which it sought to
protect its employees from potential violence from Black.8 Second, it filed the instant
suit alleging causes of action for civil extortion, interference with contractual relations,
interference with prospective economic advantage, defamation, and unfair business
practices, and it requested compensatory and punitive damages and injunctive relief. In
this suit, Fireman’s Fund filed an application for a temporary restraining order, which
was denied after the court found that the company had “failed to demonstrate a likelihood
of success on the merits . . . [and that] prior restraints on free speech are highly
disfavored.” Two months later, Fireman’s Fund amended its complaint reiterating the
same causes of action, except it eliminated the defamation claim and all requested relief
except an injunction. The requested injunction sought to prohibit Black from
“[p]ublishing statements or images in any media and on any Web site stating that
Fireman’s Fund personnel have committed crimes or fraud, or that associate Fireman’s
Fund or its business practices with Nazis, with the conduct, practices or statements of the
Nazi regime, or with the Einsatzgruppen”;9 from “using the word[s] ‘Allianz’ [or]
‘Fireman’s Fund’ in conjunction with the word ‘Nazi,’ the word ‘exterminate,’ and/or an
image or images of a swastika . . .”; and from “[c]ommunicating with or contacting . . .
Fireman’s Fund . . . employees with any communications that are alarming, annoying,
harassing, intimidating, threatening, vile, ugly[,] or hateful.”
In response to the amended complaint, Black filed the anti-SLAPP motion that is
the subject of this appeal and requested the court to take judicial notice of an 82-page
7
Undesignated statutory references are to the Code of Civil Procedure.
References to subdivisions standing alone are to the subdivisions of section 425.16.
8
Fireman’s Fund v. Black (Super Ct. San Mateo County, 2012, No. 511775). A
temporary restraining order was issued that day to protect four employees, but Black was
not notified of it. This order was in effect for six months. After a hearing in August
2012, the trial court denied the request for a permanent injunction under section 527.8
and dissolved the temporary order. Black’s unopposed request for judicial notice filed
April 19, 2013, is hereby granted. (Evid. Code, §§ 452, subd. (d), 459.)
9
This word apparently refers to Third Reich paramilitary units.
7
declaration he had prepared for the workplace-violence case. Fireman’s Fund opposed
both the motion and the request for judicial notice. On July 10, 2012, Black filed his 82-
page declaration, including voluminous exhibits, which was mostly devoted to denying
he posed a threat to the company’s employees. Fireman’s Fund promptly moved to strike
it. Black then filed a reply with a five-page supplemental declaration, with more exhibits.
This declaration appears to be mostly intended to show the Allianz-Nazi connection is a
matter of public interest. Fireman’s Fund moved to strike, and filed objections to, the
supplemental declaration. It also filed declarations in support of its opposition to the
anti-SLAPP motion, and Black filed written objections to those declarations.10
Meanwhile, two days after filing his 82-page declaration, Black filed a regulatory
complaint against Fireman’s Fund with CDI, alleging that Fireman’s Fund (1) failed to
provide advance notice of a nonrenewal of his policy, (2) replaced his policy with a less
favorable one, (3) conducted “illegal and improper corporate credit checks” on his
business, (4) delayed processing of his claim, (5) retaliated against him by demanding
excessive documents and testimony from him, and (6) engaged in intimidation tactics by
threatening to file suit.
After a hearing, the trial court denied the anti-SLAPP motion on the basis that
Black failed to establish he had engaged in protected activity under section 425.16,
subdivisions (e)(2) or (e)(4). A written order followed. The court found that Black’s
10
Although the trial court did not enter an explicit ruling on the motions to strike
or the parties’ objections, it admitted Black’s declarations at a hearing on July 19. On
appeal, Fireman’s Fund urges us to rule on its outstanding objections. We decline to do
so. In the context of an anti-SLAPP motion, evidentiary objections are forfeited in the
absence of an explicit ruling on them. (Soukup v. Law Offices of Herbert Hafif (2006)
39 Cal. 4th 260, 291, fn. 17 (Soukup) [evidentiary objections forfeited in the absence of an
explicit ruling when appellate court reviews an order under § 425.18]; but cf. Reid v.
Google, Inc. (2010) 50 Cal. 4th 512, 531-532 [evidentiary objections not forfeited in the
absence of an explicit ruling when appellate court reviews a summary judgment].)
Furthermore, even if we were to rule that the evidentiary rulings had not been forfeited
below, we would deem them forfeited on appeal because they have not been presented
and argued with specificity. (See Roe v. McDonald’s Corp. (2005) 129 Cal. App. 4th
1107, 1114.)
8
threatening emails were extortionate as a matter of law, that the private emails could not
constitute an exercise of the right of petition, that Black had not argued that the emails
constituted an exercise of free speech, and that Black had failed to demonstrate that the
emails were made in connection with a public issue or an issue of public interest.
DISCUSSION
A. The Anti-SLAPP Statute and the Standard of Review.
The Legislature enacted section 425.16 because of “a disturbing increase in
lawsuits brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).) The
law declares that “it is in the public interest to encourage continued participation in
matters of public significance, and . . . this participation should not be chilled through
abuse of the judicial process.” (Ibid.) The heart of the anti-SLAPP statute is contained in
subdivision (b)(1): “A cause of action against a person arising from any act of that
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 that there is a probability that the plaintiff will prevail on the claim.”
Subdivision (e) specifies four categories of protected acts: “(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.”
Courts engage in a two-step, burden-shifting process in evaluating an anti-SLAPP
motion. Under the first step, the court considers whether the defendant has made a prima
facie showing that the plaintiff’s cause of action arises from actions taken in furtherance
9
of the right of petition or the right of free speech in connection with a public issue.
(§ 425.16, subd. (b)(1); Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal. 4th 12, 21;
City of Cotati v. Cashman (2002) 29 Cal. 4th 69, 76.) To make such a showing, the
defendant need not show that its actions were protected as a matter of law, but need only
establish a prima facie case that its actions fell into one of the categories listed in
subdivision (e). (Flatley v. Mauro (2006) 39 Cal. 4th 299, 314 (Flatley).) If the
defendant cannot make this showing, the anti-SLAPP motion is denied, and the case
continues to be litigated. A defendant cannot make this showing when its conduct is
established by uncontroverted or uncontested evidence to have amounted to extortion and
was thus “illegal as a matter of law.” (Id. at p. 305.)11
In assessing the first step, the court examines the pleadings and declarations
submitted in support of and in opposition to the motion. (§ 425.16, subd. (b)(2); Flatley,
supra, 39 Cal.4th at p. 326; Navellier v. Sletten (2002) 29 Cal. 4th 82, 89 (Navellier).) It
should not, however, draw inferences from the pleadings in a way that effectively relieve
a party of its burden of proof. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal. App. 4th
993, 1001-1002.) “ ‘[I]f there is a genuine issue of material fact that turns on the
credibility of [a] witness or on proper inferences to be drawn from indisputable facts,
then the matter is not indisputable.’ ” (Soukup, supra, 39 Cal.4th at p. 286, quoting
legislative history of § 425.18.)
If the defendant establishes a prima facie case that its actions fell into one of the
categories listed in subdivision (e), the assessment turns to the second step where the
burden is on the plaintiff. Under this step, the anti-SLAPP motion will be granted unless
the plaintiff establishes “a probability” it will prevail, even though the claims arose out of
protected activity. (§ 425.16, subd. (b)(1).) This means the “ ‘ “plaintiff must
11
In cases where the defendants’ conduct is alleged to have been illegal but there
is not uncontroverted or uncontested evidence establishing it to have been illegal as a
matter of law under the first step of the anti-SLAPP analysis, the plaintiff has the burden
of showing prima facie evidence of illegality under the second step in order for the case
to proceed.
10
demonstrate that the complaint is both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment.” ’ ” (Premier Medical
Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal. App. 4th
464, 476, italics omitted.) To demonstrate that the complaint is legally sufficient, the
plaintiff is only required to show a “ ‘minimum level of legal sufficiency and triability.’ ”
(Grewal v. Jammu (2011) 191 Cal. App. 4th 977, 989; Navellier, supra, 29 Cal.4th at
p. 89.) If the plaintiff does so, the anti-SLAPP motion is denied and the plaintiff may
continue to litigate the case. (See Flatley, supra, 39 Cal.4th at p. 332 & fn. 16.) Thus, an
anti-SLAPP motion is only granted when the defendant shows that its conduct was
constitutionally protected, and the plaintiff fails to satisfy its burden under the second
step.
We review an appeal of an order denying an anti-SLAPP motion de novo.
(Oasis W. Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 820.) And we affirm
regardless of the grounds on which the lower court relied if the trial court’s denial is
correct on any theory. (City of Alhambra v. D’Ausilio (2011) 193 Cal. App. 4th 1301,
1307.)
B. Black Satisfied His Burden of Showing Some of His Communications
Constituted Protected Speech Under the First Step of the Anti-SLAPP
Analysis.
Black claims his communications were protected within the meaning of section
425.16, subdivisions (e)(2) and (e)(4) because they were made “in anticipation of
litigation and other official proceedings” and “in furtherance of [his] rights of petition
and free speech about issues of public interest.” We agree that some of Black’s
communications fell within these categories.
11
1. Some of Black’s Communications Were Made in Anticipation of Official
Proceedings and Litigation.
As mentioned above, subdivision (e)(2) of the anti-SLAPP statute 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, or any other official proceeding
authorized by law.” (Italics added.) The phrase “ ‘under consideration or review’ ” does
not limit the protection to a currently pending proceeding. (Neville v. Chudacoff (2008)
160 Cal. App. 4th 1255, 1268; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996)
47 Cal. App. 4th 777, 784.) “ ‘[J]ust as communications preparatory to or in anticipation
of the bringing of an action or other official proceeding are within the protection of the
litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such
statements are equally entitled to the benefits of section 425.16.’ ” (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1115; see also Digerati
Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal. App. 4th 873, 887-
888 [letter threatening to sue film distributors for distributing unauthorized film];
Blanchard v. DIRECTV (2004) 123 Cal. App. 4th 903, 918 [demand letter threatening
suit].)
Here, the trial court ruled that emails to private parties are not protected under
subdivision (e)(2). We disagree, and we follow case authority holding that petitioning
activity may be protected even if it is not made directly to a government agency.
(Ludwig v. Superior Court (1995) 37 Cal. App. 4th 8, 17-18 [defendant instigated
petitioning activity by others]; Blanchard v. DIRECTV, supra, 123 Cal.App.4th at p. 918
[allegedly extortionate demand letters sent to potential pirates of defendant’s television
signals were protected].)
Black’s communications fell within subdivision (e)(2) because Black threatened to
file a complaint with CDI and bring a lawsuit. Fireman’s Fund argues that its claims did
not arise from threats of regulatory action but instead from other, unprotected conduct,
namely Black’s threat to “go public” with his Internet campaign and the creation of his
Web site. But this position is inconsistent with the position Fireman’s Fund took in both
12
the trial court and another part of its respondent’s brief, where it listed Black’s
“[t]hreatening to report alleged violations of laws to various state and federal agencies”
as one of his extortionate threats.
In fact, Black did file a complaint with CDI in July 2012. Fireman’s Fund points
out that it was not filed until after Fireman’s Fund responded to the anti-SLAPP motion.
Calling it a “sham” intended solely and belatedly to bring Black within the protection of
subdivision (e)(2), Fireman’s Fund suggests we ignore the CDI complaint in assessing
whether Black’s speech or petitioning activity was protected. We decline to do so. A
trier of fact could find that the CDI complaint was evidence that Black’s threats were
made in earnest as a concerned consumer and would not have been abandoned in
exchange for a pay off. (See Slauson Partnership v. Ochoa (2003) 112 Cal. App. 4th
1005, 1021-1022 [trial court could rely on postcomplaint evidence in ruling on anti-
SLAPP motion].)
And Fireman’s Fund’s contention that its claims did not arise out of threatened
litigation also rings hollow. According to Lesser, Black stated he (Black) would not file
a lawsuit because he had no faith that the courts would look favorably on his position.
But the fact is that Black’s threats to file suit appear repeatedly in his emails, and the
subject matter of his proposed litigation appears to have been broader than just the
insurance-coverage issue. According to Black, he “put [Fireman’s Fund] on notice since
2010 [he] intend[ed] on filing a lawsuit for fraud, RICO violation and Unfair Trade
Practices. . . .”
The test in determining whether a litigation threat is protected is whether “the
statement ‘ “concern[s] the subject of the dispute” and is made “in anticipation of
litigation ‘contemplated in good faith and under serious consideration.’ ” ’ ” (Digerati
Holdings, LLC v. Young Money Entertainment, LLC, supra, 194 Cal.App.4th at p. 887;
Rohde v. Wolf (2007) 154 Cal. App. 4th 28, 36-37 [attorney’s voicemail message to
client’s sister accusing her of conspiracy to defraud and threatening “to take ‘appropriate
action’ ” held protected activity, with litigation “ ‘contemplated in good faith and under
serious consideration’ ”].) “ ‘Whether a prelitigation communication relates to litigation
13
that is contemplated in good faith and under serious consideration is an issue of fact.’ ”
(Malin v. Singer (2013) 217 Cal. App. 4th 1283, 1301.) On the record before us, we
cannot say as a matter of law that Black was not serious in threatening litigation, and we
thus conclude he satisfied his burden under the first step of the anti-SLAPP test to show
that Fireman’s Fund’s claims arose from conduct protected under subdivision (e)(2).
2. Some of Black’s Communications Involved Matters of Public
Interest.
Subdivision (e)(4) includes “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.” The trial court declined to address whether
Black’s conduct fell within this subdivision finding that “Black offers no argument that
[his emails] constitute an exercise of free speech.” We cannot agree. The anti-SLAPP
motion and supporting memorandum show that Black brought the motion partly based on
his “free speech rights . . . in connection with a public interest.” Black specifically
argued that “CCP § 425.16(e)(4) includes the conduct of private persons and entities
when the subject is a matter of widespread public interest. [Citations.]”
The record includes ample evidence that Black’s conduct was made in furtherance
of his rights of petition and of free speech. Black’s threat to create an “internet
campaign” was at the heart of Fireman’s Fund’s first amended complaint, as confirmed
by the number of times Fireman’s Fund repeated the threat throughout its factual
allegations. Fireman’s Fund alleged that Black threatened to “create a ‘viral’ social
media campaign,” to “launch an internet social media campaign,” to “escalate his dispute
into the public realm,” to “publicize his allegations of criminal conduct via the Internet,”
to “ ‘engage thousands of other consumers in crowd sourcing evidence [and] will virally
communicate to worldwide communities warnings about companies like
Allianz/[Fireman’s Fund],’ ” and to “ ‘assert [his] rights through . . . a social network
multimedia publication, broadcast and blog.” Fireman’s Fund complained of Black’s
“ ‘pending launch of a Social Network grievance campaign,’ ” his plan to reach a “social
network of 500,000,” and his having “set out text he intended to publish.” The first
14
amended complaint concludes with the stated belief that “[Black] will launch the
threatened ‘campaign.’ ”
The first amended complaint also alleged that Black had “created a web site with
which to spread these rumors” and through which he threatened to “engage thousands of
other consumers . . .,” thereby advancing what Fireman’s Fund called “a false
understanding that Fireman’s Fund, a wholly-owned subsidiary of Allianz, [was] acting
to ‘exterminate’ Black and his insurance claim with tactics used by Nazi paramilitary
groups during World War II.”
In assessing whether Black’s conduct was on an “issue of public interest,” we look
to “ ‘the principal thrust or gravamen of the plaintiff’s cause of action.’ [Citation.] We
‘do not evaluate the first prong of the anti-SLAPP test solely through the lens of a
plaintiff’s cause of action.’ [Citation.] The ‘critical consideration’ is what [conduct] the
cause of action is ‘based on.’ [Citation.]” (Hecimovich v. Encinal School Parent
Teacher Organization (2012) 203 Cal. App. 4th 450, 464-465, italics omitted.) An
“ ‘ “ ‘issue of public interest’ ” ’ ” is “ ‘ ‘any issue in which the public is interested.” ’ ”
(Id. at p. 465, italics omitted.) And whether an issue is of public interest is to be
determined broadly, consistent with the statute’s remedial purpose. (Id. at pp. 464-465.)
Black contends, and we agree, that speech complaining about an insurance
company’s allegedly illegal business practices in issuing, canceling, and substituting
policies or processing claims must be considered speech on matters of public interest
under subdivision (e)(4). Black’s complaints were not limited to his own isolated
insurance claim but also included accusations that Fireman’s Fund suffered from internal
corruption and was engaged in financial misconduct and “money laundering.”
Many cases hold “consumer protection information” is a matter of public interest.
(See Wilbanks v. Wolk (2004) 121 Cal. App. 4th 883, 899-900 [warning on Web site about
business practices of viatical settlement broker was protected as “consumer protection
information” which could “aid consumers [in] choosing among brokers”]; Hupp v.
Freedom Communications, Inc. (2013) 221 Cal. App. 4th 398, 404 [“ ‘consumer
information that goes beyond a particular interaction between the parties and implicates
15
matters of public concern that can affect many people is generally deemed to involve an
issue of public interest’ ”]; Chaker v. Mateo (2012) 209 Cal. App. 4th 1138, 1146
[warning on “Ripoff Report Web site” about “character and business practices” of
forensics practitioner was protected because it was “intended to serve as a warning to
consumers about his trustworthiness”]; Wong v. Jing (2010) 189 Cal. App. 4th 1354, 1366-
1367 [Web site yelp.com post about individual’s experience with dentist was issue of
public interest]; Gilbert v. Sykes (2007) 147 Cal. App. 4th 13, 23-24 [information posted
on Web site about plastic surgeon contributed to public debate about plastic surgery];
Carver v. Bonds (2005) 135 Cal. App. 4th 328, 343-344 [newspaper article critical of
medical practitioner was “ ‘consumer protection information’ ”]; cf. Bently Reserve LP v.
Papaliolios (2013) 218 Cal. App. 4th 418, 425 [skipping over first step because
“ ‘everyone agree[d]’ ” a negative post on the Web site yelp.com about an apartment
building manager was statutorily protected].) We think it self-evident that potential
consumers of insurance may be interested in the experiences of an insurance company’s
current customers.
Black’s threat to publicize Allianz’s past relationship with the Nazi regime in
Germany is also a matter of public interest. Information that an insurance company
cooperated with Hitler’s regime―and failed to pay life insurance benefits to the
beneficiaries of policyholders who were exterminated in concentration camps―might
well affect consumers’ decisions about that company. The fact Fireman’s Fund itself was
not a participant in these events, but is merely owned by Allianz, does not change our
conclusion.
We therefore conclude that Black satisfied his burden under the first step of the
anti-SLAPP test to show that Fireman’s Fund’s claims arose from protected activity.
C. Fireman’s Fund Failed to Establish by Concession or Uncontroverted and
Conclusive Evidence that Black’s Communications Constituted Extortion
as a Matter of Law.
The trial court found that Black’s communications amounted to extortion as a
matter of law. We disagree. Although we recognize that many of the communications
16
were rude, uncivil, hostile, inflammatory, or threatening, we conclude that whether they
amount to extortion depends on facts that have not yet been conclusively resolved.
Flatley, supra, 39 Cal. 4th 299 is the leading case. There, a well-known dancer,
Flatley, sued an attorney for civil extortion, intentional infliction of emotional distress,
and wrongful interference with economic advantage. (Id. at p. 305.) The case arose after
an attorney, D. Dean Mauro, sent a demand letter on behalf of a female client who
claimed Flatley had raped her. Mauro demanded a seven-figure payment to “settle” his
client’s claims. (Ibid.) His demands suggested Flatley would be exposed to prosecution
for unspecified violations involving immigration, tax, and Social Security law. (Id. at
p. 329.) He warned if Flatley did not pay “ ‘seven figures’ ” to settle the claim, Mauro
would disseminate press releases to a long list of media outlets and “ ‘ “go public” ’ ”
with the rape accusations to “ ‘ “hit [Flatley] at every single place he tours” ’ ” and
“ ‘ “ruin him” ’ ” by ensuring the story would follow him wherever he performed. (Id. at
p. 330.)
Flatley held that a defendant’s anti-SLAPP motion fails when “either the
defendant concedes, or the evidence conclusively establishes, that the assertedly
protected speech or petition activity was illegal as a matter of law.” (Flatley, supra, 39
Cal.4th at p. 320.) In concluding that Mauro’s communications constituted extortion as a
matter of law, the Supreme Court held (1) the threat made by an extortionist does not
have to succeed in producing an exchange of money; (2) even if the threatened action is
not itself illegal, the coupling of the threat with a demand for money may make it so; and
(3) it is immaterial whether the purpose of the threat is to collect money justly due. (Id.
at pp. 326-327.)
Flatley clarified that whether a defendant’s communications amount to extortion
may be made as a matter of law on the first step of the anti-SLAPP analysis. (Flatley,
supra, 39 Cal.4th at p. 320.) But it also clarified that if “a factual dispute exists about the
legitimacy of the defendant’s conduct, [the issue] cannot be resolved within the first step
but must be raised by the plaintiff in connection with the plaintiff’s burden to show a
probability of prevailing on the merits.” (Flatley, supra, at p. 316.) Thus, for extortion to
17
be decided as a matter of law on the first step, it must be established by “defendant’s
concession or by uncontroverted and conclusive evidence.” (Id. at p. 320.) Other courts
have similarly concluded that making threats to someone to pay up or face legal
consequences can amount to extortion, and it thus falls outside the protection of section
425.16. (See, e.g., Stenehjem v. Sareen (2014) 226 Cal. App. 4th 1405, 1423; Mendoza v.
Hamzeh (2013) 215 Cal. App. 4th 799, 807; Cohen v. Brown (2009) 173 Cal. App. 4th 302,
317-318.)
In considering a claim of extortion under the first step of the anti-SLAPP analysis,
the plaintiff bears the burden of showing uncontroverted or uncontested evidence of the
illegality. “[O]nce the defendant has made the required threshold showing that the
challenged action arises from assertedly protected activity, the plaintiff may counter by
demonstrating that the underlying action was illegal as a matter of law because either the
defendant concedes the illegality of the assertedly protected activity or the illegality is
conclusively established by the evidence presented in connection with the motion to
strike.” (Soukup, supra, 39 Cal.4th at pp. 286-287 [decided under § 425.18, subd. (h)];
see also Seltzer v. Barnes (2010) 182 Cal. App. 4th 953, 964-965 [Flatley, supra,
39 Cal. 4th 299 bars anti-SLAPP motions only where there is no factual dispute that the
party bringing the motion has engaged in illegal conduct and “[t]he burden is on the party
opposing a section 425.16 motion to strike to show that no factual dispute exists”].)
As we read Flatley, supra, 39 Cal. 4th 299, the defendant’s liability for extortion
should be determined “as a matter of law” only where the evidence is so one-sided as to
be indisputable. Soukup, supra, 39 Cal.4th at pages 285-286 discussed this language in
the context of a SLAPPback action and concluded that illegality “as a matter of law”
equates with “ ‘indisputably illegal behavior.’ ” (Italics added.) This is but a specialized
application of a more general principle: “Only when the inferences are indisputable may
the court decide the [fact] issues as a matter of law. . . . An issue of fact becomes one of
law only when ‘the undisputed facts leave no room for a reasonable difference of
opinion.’ [Citation.]” (Manuel v. Pacific Gas & Electric Co. (2009) 173 Cal. App. 4th
927, 937.)
18
Flatley itself pointed out the narrowness of its holding: “We emphasize that our
conclusion that Mauro’s communications constituted criminal extortion as a matter of
law are based on the specific and extreme circumstances of this case. Extortion is the
threat to accuse the victim of a crime or ‘expose, or impute to him . . . any deformity,
disgrace or crime’ (Pen. Code, § 519) accompanied by a demand for payment to prevent
the accusation, exposure, or imputation from being made. Thus, our opinion should not
be read to imply that rude, aggressive, or even belligerent prelitigation negotiations,
whether verbal or written, that may include threats to file a lawsuit, report criminal
behavior to authorities or publicize allegations of wrongdoing, necessarily constitute
extortion. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian [(1990)]
218 Cal.App.3d [1058,] 1079 [‘a person, generally speaking, has a perfect right to
prosecute a lawsuit in good faith, or to provide information to newspapers’].) . . . In
short, our discussion of what [constitutes] extortion as a matter of law is limited to the
specific facts of this case.” (Flatley, supra, 39 Cal.4th at p. 332, fn. 16.)
Here, the claimed illegality of Black’s communications was the conditional nature
of his threats: Fireman’s Fund claimed Black threatened to “expose” its alleged
wrongdoing only if he was not paid $215,000. Indeed, “ ‘[b]y definition, extortion
punishes conditional threats. . . .’ ” (People v. Bolin (2005) 18 Cal. 4th 297, 339, italics
added.) Thus, Fireman’s Fund’s theory that Black committed extortion as a matter of law
requires Fireman’s Fund to show not only that Black made threats, but also that Black
impliedly agreed not to carry them out if he received enough money. (See Flatley, supra,
39 Cal.4th at p. 332, fn. 16 [“Extortion is the threat to accuse the victim of a crime . . .
accompanied by a demand for payment to prevent the accusation, exposure, or
imputation from being made”] italics added.)
The communications that Fireman’s Fund points to as demonstrating such a link
are ambiguous. For instance, as we mentioned earlier, Black threatened to use “social
media to facilitate a viral consumer brand awareness campaign . . . until [Fireman’s
Fund] corrects its conduct.” (Italics added.) Whether by the italicized phrase Black
19
meant “pays my $215,000 claim” or “stops cheating its customers” is unclear. Fireman’s
Fund insists it can only be interpreted to mean the former, but we disagree.
Other evidence is also subject to different interpretations. In an email from Lesser
to Black dated August 3, 2010, titled “Our telephone conversation,” Lesser summarized,
“If [Fireman’s Fund] and you agree on an amount that settles your claim, you will drop
all your other complaints about the company’s handling of matters related to your
policies and/or your claim including any alleged improper cancellation, non-renewal or
renewal on different terms, any act or omission in the handling or investigation of your
claim, and any investigation of a potentially fraudulent claim.” (Italics added.) Black
responded to this email three days later, stating in part, “As you requested, I suspended
my grievance processing while you discussed this matter with Allianz/[Fireman’s Fund].
In turn I requested a reasonably prompt reply.” (Italics added.) Thus, Black’s delay in
actually “going public” may have originated with a request from Lesser. Black said he
would “suspend” pursuing his grievance, not that he would drop it altogether.
Black also said in various formulations that if he and Fireman’s Fund could not
“resolve this matter,” he would go forward with his threatened actions.12 In another
email Black complained to Lesser about the delays in processing his claim and suggested
Fireman’s Fund “act to settle this matter sooner than later before increased risks,
liabilities and expenses exceed the economic value of this matter.” Similarly, in Black’s
supplemental declaration he stated, “Throughout the course of my communications with
12
Black said, “If we cannot resolve this matter then I reserve my right to . . .
contact the regulatory relations counterparts at Allianz of American Corporation . . . in
order to escalate my complaint about a serious incident. [¶] . . . I expect Allianz to
resolve this matter. However, if necessary, I will also exerciseing [sic] my rights to
appeal the claims denial process internally to the parent company; as a Shareholder to
change corrupt management; request the insurance commissioner investigate the CIC
policy renew and claims process system trouble reports systems; exercise my
constitutionally protected rights as a citizen to speak in the digital public square. Voice
my complaint about a corporate brand with a murderous and corrupt history that seems to
have returned to is [sic] evil ways after a 65[-]year hiatus. And finally stand in the shoes
of the Attorney General pursuant [to] [Business and Professions Code section] 17200 and
in a year or so civilly litigate the matter.” (Italics added.)
20
[Fireman’s Fund], I made clear . . . that if my claims was [sic] not settled to my
satisfaction, I would be making complaints to regulatory authorities and possibly filing a
lawsuit.” (Italics added) In yet another email, Black warned if two named Fireman’s
Fund in-house counsel “do not resolve this matter satisfactorily, higher ranking Allianz
leaders will be noticed, and ultimately [the attorneys] will be judged for the consequences
of this situation.” (Italics added.)
According to Fireman’s Fund, the phrases “act to settle” and those demanding a
“satisfactory” resolution meant only one thing: payment of $215,000. But we cannot
rule out the possibility a trier of fact could conclude that Black was looking for a different
type of “settlement” involving issues other than money, for instance, the reform of some
of Fireman’s Fund’s claim processing procedures or the removal of certain employees.
Whether the demand the dispute be settled “to [Black’s] satisfaction” amounted to
extortion is a factual question.
Lesser’s declaration explicitly draws the link between the threat and the money,
saying “Mr. Black has repeatedly told me in telephone conversations and through
numerous emails that his harassing tactics are intended to force Fireman’s Fund to pay
him the $215,000 he demands, and that it will all stop if he gets what he wants.” Black’s
declaration did not admit or deny Lesser’s specific assertion, and the emails themselves
do not constitute conclusive evidence of extortion. Under these circumstances, we
conclude there are triable issues whether Black engaged in extortion.
Our case is more fact-laden than was Flatley. In Flatley there was a letter and a
series of telephone conversations in which the attorney expressed unwillingness to yield,
issued a “first, and only” (italics in original, boldface and underlining omitted) or “first &
final” demand for a “ ‘seven figure[]’ ” (boldface omitted) settlement, showed no interest
in legitimate negotiation, and established a short and strict deadline on Flatley’s response.
(Flatley, supra, 39 Cal.4th at pp. 308-309, 311, 332.) There was every reason to
conclude this was a “shake-down” of Flatley based on false accusations. Mauro
threatened to report Flatley for unspecified, unrelated violations to the Internal Revenue
Service, Social Security Administration, and immigration authorities. (Id. at p. 309.)
21
And even with his anti-SLAPP motion, Mauro had submitted no proof whatsoever that a
rape had actually occurred. (Id. at p. 331, fn. 15.)
Black’s email campaign, on the other hand, extended over a period of nearly two
years and involved “hundreds” of communications. Despite the lengthy correspondence,
and although he threatened various forms of “exposure,” Fireman’s Fund has not pointed
to any emails in which the threat of exposure was accompanied by an explicit demand for
$215,000 in exchange for silence. Black periodically set deadlines for compliance with
his demands, then evidently backed off without carrying out his threats.13 And though
Fireman’s Fund argues that Black had no reason to wait for a final denial of his claim
before conducting his Internet campaign unless he was trying to pressure Fireman’s Fund
into paying his claim, we quoted above an email exchange suggesting he did so at
Lesser’s request. Under these circumstances, the reasons for his waiting appear to be
issues of fact.
In short, on the record before us, we cannot say Black’s communications
amounted to extortion as a matter of law.
D. Fireman’s Fund Established Under the Second Step of the Anti-SLAPP
Analysis that its Causes Have Minimal Legal Merit Under the Facts
Established Thus Far in the Proceedings.
Having concluded that Black satisfied his burden of showing that some of his
communications constituted protected speech, and having not found uncontroverted or
uncontested evidence that Black’s communications amounted to extortion as a matter of
13
In an email dated April 4, 2011, Black demanded that his claim be settled that
week, warning that “after Friday, the cost of my claim will increase substantially, as will
the legal and personal liability risks to” Fireman’s Fund employees. (Italics added.) He
ended the note, “My demand remains the same, $215,344.85 for my property loss, plus
accrued claims processing costs and interest.” This email may tend to show that Black
was unwilling to negotiate and planned to “go public” unless his claim was paid in full,
but again the language used is subject to varying interpretation, and he did not, in fact, go
public after the week’s end.
22
law, we turn to the second step of the anti-SLAPP analysis.14 As we have discussed,
under the second step a plaintiff must show that “ ‘ “defenses are not applicable . . . as a
matter of law or [must demonstrate] a prima facie showing of facts which, if accepted by
the trier of fact, would negate such defenses.” ’ [Citations.]” (Birkner v. Lam, supra,
156 Cal.App.4th at pp. 285-286, italics in original.) Depending on the case, the issue
under the second step may be factual, legal, or mixed. If, for example, a plaintiff alleged
that a defendant had made defamatory statements, and the defendant denied having made
those statements, the plaintiff’s burden under the second step would require a showing of
some factual basis for its contention that the statements were made. Here, however, the
parties do not dispute many of the essential facts, but instead simply dispute how they
should be characterized and whether Fireman’s Fund’s claims are barred as a matter of
law.15 In such a case, for a plaintiff to satisfy its burden under the second step it must
show that the claim has a “minimal level of legal sufficiency.” (Grewal v. Jammu, supra,
191 Cal.App.4th at p. 989; Navellier, supra, 29 Cal.4th at p. 89.)
We conclude Fireman’s Fund has established that its claims against Black have at
least a minimal level of legal sufficiency because Black’s defenses are either inapplicable
as a matter of law or it has made a prima facie showing of facts negating the defense.16
14
We can either remand the second-step analysis to the trial court (Birkner v. Lam
(2007) 156 Cal. App. 4th 275, 286-287; Cross v. Cooper (2011) 197 Cal. App. 4th 357,
392) or decide it ourselves since it is subject to independent review. (Schwarzburd v.
Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal. App. 4th
1345, 1355; Malin v. Singer, supra, 217 Cal.App.4th at p. 1300.) We elect to decide it
ourselves for the sake of expediency.
15
Even if the parties had not forfeited their evidentiary objections below and on
appeal (see ante, fn. 10), we would still conclude that Fireman’s Fund met its burden of
establishing a prima facie showing of facts under the second step based on the parties’
agreed-upon facts. Although the parties generally ask us to disregard their opponent’s
facts, the parties rely on many of the same facts.
16
In doing so, we make no determination whether Fireman’s Fund can prove its
allegations or whether there may be other legal impediments to the claims not raised by
the parties in the context of the anti-SLAPP motion. We also make no determination
whether these issues can be resolved on dispositive motions without the need for a trial.
23
Two of the defenses—res judicata and the litigation privilege—would bar all of
Fireman’s Fund’s causes while the other defenses at issue would bar specific causes of
action. We now turn to discuss each of these defenses.
1. Fireman’s Fund’s Claims Are Not Barred by Principles of Res Judicata.
Black argues that Fireman’s Fund’s causes of action are barred by res judicata
because the workplace-violence petition under section 527.8 was resolved against
Fireman’s Fund. We disagree and conclude Fireman’s Fund has satisfied its burden of
demonstrating that res judicata does not bar its causes of action.
Res judicata precludes “relitigation of the same cause of action in a second suit
between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto
Co. (2002) 28 Cal. 4th 888, 896.) When applicable, res judicata is conclusive on all issues
that were raised or that could have been raised in the earlier proceeding. (Federation of
Hillside & Canyon Assns. v. City of Los Angeles (2004) 126 Cal. App. 4th 1180, 1205.) A
prior judgment is only a bar, however, if the cause of action in the second proceeding is
the same as that asserted in the first. (Branson v. Sun-Diamond Growers of California
(1994) 24 Cal. App. 4th 327, 340.) Two causes of action are the same if they are based on
the same “ ‘primary right.’ ” (Federation, at p. 1202, citing Mycogen Corp., supra, at p.
904.) “[D]ifferent primary rights may be violated by the same wrongful conduct”;
Branson, at p. 342 [“ ‘The significant factor is the harm suffered; that the same facts are
involved in both suits is not conclusive’ ”]; Boeken v. Philip Morris USA, Inc. (2010) 48
Cal. 4th 788, 798 [“[U]nder the primary rights theory, the determinative factor is the harm
suffered. . . .”])
Here, Fireman’s Fund was the petitioner in the section 527.8 action and is the
plaintiff in this civil action. But the causes of action do not involve the same harm. In
the section 527.8 action, the primary right was not Fireman’s Fund’s own injury, but was
instead a prospective right of the company’s employees to be free from workplace
violence. In the instant suit, the primary right is Fireman’s Fund’s right to be free from
communications it alleges amount to civil extortion and interfere with its contracts and
prospective economic advantage. Fireman’s Fund is not precluded from proving that
24
Black is liable to it for civil injuries caused by his communications just because it was
denied an injunction in the section 527.8 proceeding. Accordingly, Fireman’s Fund has
satisfied its burden of demonstrating that res judicata does not bar its causes of action.
2. Black Forfeited His Argument that the Litigation Privilege Bars
Fireman’s Fund’s Claims.
Black argues on appeal that Fireman’s Fund cannot demonstrate that its claims
have minimal legal merit because the claims are barred by Civil Code section 47 and the
First Amendment since his communications were part of his “efforts to resolve his
disputes with [Fireman’s Fund] so that he did not have to initiate official proceedings.”
The litigation privilege “ ‘arises at the point in time when litigation is no longer a mere
possibility, but has instead ripened into a proposed proceeding that is actually
contemplated in good faith and under serious consideration as a means of obtaining
access to the courts for the purpose of resolving the dispute.’ [Citation.]” (Haneline
Pacific Properties, LLC v. May (2008) 167 Cal. App. 4th 311, 319.)
We decline to resolve this issue at this stage of the proceedings, however, because
Black forfeited the argument for purposes of this appeal by not raising it below in
connection with the anti-SLAPP motion. In the trial court, Black made a vague reference
to a “litigation privilege” in his notice of motion, but he provided no substantive
argument in the moving or reply papers. He is thus foreclosed from relying on the
argument on this appeal. (See Newton v. Clemons (2003) 110 Cal. App. 4th 1, 11
[appellate court “ ‘ignores arguments, authority, and facts not presented and litigated in
the trial court’ ”].)
3. Fireman’s Fund Has Established that its Claim for Civil Extortion Has
Minimal Legal Merit.
As we discussed above, we cannot conclude that Black’s communications
amounted to extortion as a matter of law. But we can conclude that Fireman’s Fund has
established that its claim for extortion has at least minimal legal merit.
Black argues that Fireman’s Fund cannot state a claim for extortion because
extortion requires the payment of money and because a corporation cannot be subject to
25
extortion. We disagree with both arguments. We recognize there is older authority
suggesting that civil extortion should be analyzed as a claim for menace or duress and
should therefore require money to have been paid in response to the threat. (Fuhrman v.
California Satellite Systems (1986) 179 Cal. App. 3d 408, 426; see also Chan v. Lund
(2010) 188 Cal. App. 4th 1159, 1172.) But this view has been rejected by more recent
authority, and we reject it here. (See Monex Deposit Company v. Gilliam (C.D. Cal.
June 1, 2010, No. SACV 09-287 JVS) 2010 WL 2349095, *7; Philippine Export &
Foreign Loan Guarantee Corp. v. Chuidian, supra, 218 Cal. App. 3d 1058, 1079.) As our
state Supreme Court recognized in Flatley, supra, 39 Cal.4th at pages 326-327, a cause of
action for civil extortion exists and can be brought even if the money demanded was not
actually paid.
We further conclude a person can be liable for civil extortion even if the entity
from which he or she seeks payment is a corporation rather than an individual. This
notion is not new. Barton v. State Bar (1935) 2 Cal. 2d 294 was an extortion case
involving a lawyer’s threats to report an oil company to the prosecutor for dumping
gasoline (with threatened resultant publicity) unless the corporation paid his clients. In
People v. Bolanos (1942) 49 Cal. App. 2d 308, the defendant was subject to prosecution
for extortion for threatening to damage the business of a table-linen supply company, a
corporation. And in People v. Peppercorn (1939) 34 Cal. App. 2d 603, the defendants
were indicted on charges of conspiracy to commit extortion and extortion of, among
others, three corporations. Although these cases did not specifically address whether
corporations can be victims of extortion, their holdings strongly suggest they can be. We
discern no compelling policy reasons why one who has engaged in extortionist behavior
should be excused from accountability simply because the money sought was to be paid
by an entity with a corporate form.
We conclude that Fireman’s Fund has established that its claim for civil extortion
has at least minimal legal merit.
26
4. Fireman’s Fund Has Established that its Claim for Interference with
Contractual Relations Has Minimal Legal Merit.
A claim for interference with contractual relations requires: “(1) the existence of a
valid contract between the plaintiff and a third party; (2) the defendant’s knowledge of
that contract; (3) the defendant’s intentional acts to induce a breach or disruption of the
contractual relationship; and (4) actual breach or disruption of the contractual relationship
[resulting in damage].” (Reeves v. Hanlon (2004) 33 Cal. 4th 1140, 1148.) A third party
unlawfully interferes with an employer’s contractual relationship with its employees if
that third party intentionally sets out to disrupt the employer-employee relationship.
(I. J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal. 3d 327, 341.)
Black’s communications arguably support a claim for interference with Fireman’s
Fund’s contractual relations with its employees and parent company. Black was clearly
aware of those relationships through his constant threats to “escalate” his grievances up
the Fireman’s Fund corporate ladder, and then to Allianz. Black’s accusations of
wrongdoing and his demands that Fireman’s Fund fire or discipline certain employees
could be interpreted to have been intended to wrongfully interfere with those contractual
relationships. And Black’s insistence on including senior executives of Allianz in his
emails could be interpreted to have been intended to wrongfully disrupt Fireman’s Fund’s
contractual relationship with Allianz. We conclude that Fireman’s Fund has
demonstrated that its claim for interference with contractual relations has at least minimal
legal merit.
5. Fireman’s Fund Has Established that its Claim for Interference with
Prospective Economic Advantage Has Minimal Legal Merit.
The elements of intentional interference with prospective economic advantage are:
“ ‘ “(1) an economic relationship between the plaintiff and some third party, with the
probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of
the relationship; (3) intentional acts on the part of the defendant designed to disrupt the
relationship; (4) actual disruption of the relationship; and (5) economic harm to the
plaintiff proximately caused by the acts of the defendant.” ’ ” (Korea Supply Co. v.
Lockheed Martin Corp. (2003) 29 Cal. 4th 1134, 1153.)
27
Fireman’s Fund alleged that Black’s accusations of its unlawful misconduct were
untrue, and it further alleged that Black’s threats to publish false and disparaging
information were done with the intent to disrupt Fireman’s Fund’s business. We are
aware of at least one email in which Black suggested he intended to cause Fireman’s
Fund “serious market consequences.”
On appeal, Black argues that Fireman’s Fund must “plead and prove” his conduct
was wrongful under some other independent legal theory. But, as we have discussed, this
is incorrect. All Fireman’s Fund must show under the second step is that its claim has at
least minimal legal merit. (Grewal v. Jammu, supra, 191 Cal.App.4th at p. 989;
Navellier, supra, 29 Cal.4th at p. 89.) It has done so. Fireman’s Fund explained that it is
seeking injunctive relief to avoid business harm and the loss of goodwill and customers.
Crediting the evidence in its favor, it has demonstrated that its claim for interference with
prospective economic advantage has at least minimal legal merit.
6. Fireman’s Fund Has Established that its Claim for Unfair Competition Has
Minimal Legal Merit.
The fourth cause of action asserted by Fireman’s Fund is violation of the unfair
competition act (the UCL), which makes illegal “ ‘any unlawful, unfair, or fraudulent
business act or practice.” (Bus. & Prof. Code, § 17200 et seq.) The language of the UCL
is extraordinarily broad, and its coverage “ ‘is sweeping, embracing “ ‘anything that can
properly be called a business practice and that at the same time is forbidden by law.’ ” ’ ”
(Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999)
20 Cal. 4th 163, 180.) Indeed, the UCL’s inclusion of unfair or fraudulent business
practices permits a UCL claim to be premised on acts and practices not specifically
proscribed by any other law. (Kasky v. Nike, Inc. (2002) 27 Cal. 4th 939, 949.)
Whether Fireman’s Fund’s claim has minimal legal merit is close because it is far
from apparent that Black’s communications were part of a business activity, even under
the UCL’s broad reach. Black was sued in his individual capacity, and the complaint
against him does not allege he was acting in a business capacity. But whether an act is
business related “ ‘is a question of fact dependent on the circumstances of each case.’ ”
28
(People v. E.W.A.P., Inc. (1980) 106 Cal. App. 3d 315, 320-321.) The resolution of the
claim here will depend on a determination of factual issues, such as whether Black was
engaged in business-related activity, that cannot be resolved at this stage of the
proceedings. Suffice it to say for purposes of this appeal, Fireman’s Fund has established
that its UCL claim has at least minimal legal merit.
E. Fireman’s Fund Can Be Awarded Injunctive Relief Consistent with Constitutional
Limits if it Prevails on Any of its Claims.
Black argues that Fireman’s Fund seeks an unconstitutional prior restraint based
on the language of the prayer for relief. We disagree. Injunctive relief, if any, will only
be awarded on remand after a trial in which the legality of Black’s communications will
have been adjudicated. If any communications are determined to be illegal, they can be
enjoined from being repeated. “[F]ollowing a trial at which it is determined that the
defendant defamed the plaintiff, the court may issue an injunction prohibiting the
defendant from repeating the statements determined to be [illegal].” (Balboa Island
Village Inn, Inc. v. Lemen (2007) 40 Cal. 4th 1141, 1155-1156.) Any injunction, of
course, will need to be “ ‘tailored as precisely as possible to the exact needs of the case’ ”
and should sweep “ ‘no more broadly than necessary.’ ” (Id. at p. 1159.) But we are
confident that if Fireman’s Fund prevails on any of its claims, the trial court will be
attentive to applicable constitutional constraints in fashioning appropriately narrow relief.
DISPOSITION
For the reasons stated, the order denying the special motion to strike under section
425.16 is affirmed.
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Humes, P.J.
We concur:
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Margulies, J.
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Banke, J.
30