Geragos v. Abelyan

Filed 2/28/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MARK GERAGOS et al., B310636
Cross-complainants and (Los Angeles County
Appellants, Super. Ct. No. 19STCV40558)
v.
ARMEN ABELYAN et al.,
Cross-defendants and
Respondents.
APPEAL from an order of the Superior Court of Los
Angeles County, Barbara M. Scheper, Judge. Affirmed.
Dhillon Law Group, Krista L. Baughman and Harmeet K.
Dhillon for Cross-complainants and Appellants.
Affeld Grivakes, Damion D. D. Robinson; Law Offices of
Elliott N. Tiomkin and Elliott N. Tiomkin for Cross-defendants
and Respondents.
_________________________
INTRODUCTION
With new counsel, a client sues his former attorneys,
alleging they accepted $27,500 in fees from him but did not
perform the promised legal services. New counsel engages in
communications via email and telephone with the former
attorneys’ representative and discusses the possible filing of a
State Bar claim. The former attorneys file a cross-complaint
against the client and his new counsel for extortion, among other
claims. The client and his new counsel file an anti-SLAPP
motion, which the trial court grants.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Events Leading to Filing of Civil Complaint
From 2007 to 2011, Armen Abelyan (Abelyan) was a
revenue agent with the IRS. In September 2011, he began
training as a special agent. Prior to receiving his formal
commission as a special agent, Abelyan received a traffic ticket
and tried to use his status as a special agent “to get out of the
ticket” both at the time of citation and during his traffic court
appearance.
In 2014, Abelyan was charged with perjury and attempted
impersonation of a public officer in Los Angeles Superior Court
case No. BA430254-01, People v. Abelyan. The prosecution
argued Abelyan “lied about being a Special Agent and falsely
impersonated a public officer in trying to get out of the ticket.”
Initially, Abelyan represented himself in the case, but realized he
needed a lawyer for trial.
2
On November 19, 2015, Abelyan paid $2,500 for a
consultation with Setara Qassim (Qassim) and Mark Geragos
(Geragos) of the firm Geragos & Geragos (Geragos Firm). The
consult lasted less than 15 minutes. They “agreed to take [the]
case and requested an additional $25,000.” That same day,
Abelyan paid and signed a retainer agreement, which included
the following relevant provisions: “This letter will serve as
confirmation that the [Geragos Firm] will represent you related
to the matter pending against you in Clara Shortridge Foltz
Criminal Justice Center, Department 114.” “You retain and
employ our firm to represent you in the matter referenced above.
Our firm shall charge you a flat fee of $25,000.00 for
investigation only. If you wish that our firm be substituted in as
counsel of record, a new retainer agreement will need to be
negotiated.” “Said FEE is a FLAT FEE which covers not only the
legal services to be rendered but also secures the FIRM’S
representation and reputation to assist you with this matter. A
FLAT FEE is not based upon actual time spent on the case or the
number of hours billed, but covers services that might be greater
or lesser than the average for this type of case.” (Boldface
omitted.) Geragos and Qassim assured Abelyan he “had nothing
to worry about and that an attorney would show up the next day
at trial.”
The next day, on November 20, 2015, Abelyan waited
outside the courthouse but no one from the Geragos Firm showed
up. Abelyan called Qassim multiple times but she did not
respond. Abelyan went into court by himself and discovered the
judge had issued a bench warrant for not timely appearing at
trial. He represented himself for the remainder of the trial,
which resulted in a hung jury.
3
Abelyan contacted the Geragos Firm again and was
instructed by Qassim to “wait and see” whether the prosecutor
retried the case. When the charges were refiled, neither Qassim
nor Geragos (nor anyone else from the Geragos Firm) provided
services on Abelyan’s behalf. Abelyan had exhausted his funds to
pay the Geragos Firm and had no choice but to proceed with
appointed counsel. Abelyan was convicted in the retrial and
sentenced to four days in jail and probation.
Following the retrial, Abelyan contacted the Geragos Firm
(and Geragos directly) several times and requested a refund of
the retainer because they failed to provide any services.
On November 18, 2016, Abelyan sent a letter to Geragos,
which provides in relevant part: “Mr. Geragos, I ask that you
refund me the $25,000 retainer I paid on November 19, 2015.”
Qassim “sensed desperation in me, . . . saw the money and took
it. But she took it knowing she was never going to represent me.
She never asked for any documents and I didn’t see her till weeks
after my [first] trial . . . . The DA did re-file, but [Qassim] was
elusive. My phone calls were not returned. Out of options, I was
assigned [appointed counsel].” “After the second trial ended . . . I
came to the lobby repeatedly and demanded to see you.” The
downstairs sign-in record shows “how many times I’ve been in the
lobby asking to see you or [Qassim]. There must be a record of
. . . two dozen calls and voicemails. I was given a runaround of a
year.” “I am not trying to argue a contract with one of the most
powerful attorneys in L.A., but consider the circumstances and
the first sentence” of the retainer, which provides the Geragos
Firm “ ‘will represent you related to the matter pending against
you.’ ” At our meeting, you “calmed me down, you made me feel
safe. Well worth the $2,500, but the $25,000 wasn’t earned.
4
There was no representation or investigation or intent ever to do
either.” “I know $25,000 isn’t a lot of money to you or the firm,
but to me right now it will make all the difference. . . . Please
refund the $25,000.” The money was not refunded.
Abelyan reported the Geragos Firm to a number of bar
organizations. He also retained Elliott N. Tiomkin of the Law
Offices of Elliott N. Tiomkin (Tiomkin) to recover the retainer
from the Geragos Firm.
On November 8, 2019, Abelyan filed a civil complaint
against Geragos, Qassim, and the Geragos Firm (collectively, the
Geragos Parties) for breach of contract, promissory fraud, and
unlawful business practices (per Bus. & Prof. Code, § 17200).
The record on appeal does not contain a copy of Abelyan’s
complaint.
II. Cross-Complaint
On August 21, 2020, the Geragos Parties, represented by
Greg Kirakosian (Kirakosian), filed a cross-complaint against
Abelyan, Tiomkin, and his firm, asserting five causes of action:
(1) civil extortion, (2) conspiracy to commit extortion,
(3) negligence, (4) intentional infliction of emotional distress, and
(5) violation of Business and Professions Code section 17200. The
cross-complaint alleged the following:
On August 13, 2020, Kirakosian emailed Tiomkin to meet
and confer regarding the Geragos Firm’s intention to file a
demurrer, a motion to strike Abelyan’s complaint, and a motion
for sanctions. Tiomkin responded that same day, “making
additional frivolous claims . . . while simultaneously raising the
issue of State Bar violations against the Geragos Firm.”
The next day, on August 14, 2020, Kirakosian called
Tiomkin. Tiomkin “was uninterested in conducting a meet and
5
confer and . . . only discuss[ed] the immediate filing of a State
Bar complaint against the Geragos Firm.” Kirakosian requested
that Tiomkin “refrain from making such veiled threats.” The
conversation ended when Tiomkin stated the Geragos Firm
should return the $27,500 back to Abelyan “or Abelyan would be
immediately filing a State Bar complaint.” Kirakosian then
emailed and informed Tiomkin “all future phone conversations
must be conducted with the presence of a certified court
reporter.”
On August 18, 2020, Tiomkin “directly . . . contacted
Alexandra Kazarian of the Geragos Firm” to discuss the case, in
violation of Rule 4.2 of the California Rules of Professional
Conduct.1 Alexandra Kazarian (Kazarian) is described in the
cross-complaint as “an internal colleague” of the Geragos Firm
and “a representative of the Geragos Firm.” According to
Kazarian, Tiomkin made the following “settlement proposal” four
times during their telephone call: “ ‘If the Geragos [F]irm pays
$27,500.00, he will not report the matter to the State Bar and the
case would be dismissed with confidentiality.’ ”
Based on the foregoing, the first cause of action in the
cross-complaint alleged Tiomkin and Tiomkin’s Firm “made
1 Rule 4.2(a) of the Rules of Professional Conduct provides:
“In representing a client, a lawyer shall not communicate directly
or indirectly about the subject of the representation with a person
the lawyer knows to be represented by another lawyer in the
matter, unless the lawyer has the consent of the other lawyer.”
(Cal. Rules of Prof. Conduct, rule 4.2(a).)
Further undesignated rule references are to the California
Rules of Professional Conduct.
6
repeated attempts to extort funds from the Geragos Firm on
Abelyan’s behalf.” By “means of threats to present disciplinary
charges in exchange for the immediate payment of $27,500.00,”
Tiomkin violated Rule 3.10 and Penal Code section 524.2 The
second cause of action alleged Abelyan, Tiomkin, and Tiomkin’s
Firm “actively participated with each other in a plan to extort
funds” from the Geragos Parties “based on false and baseless
claims as well as threats of complaints to the State Bar.”
The third cause of action alleged Abelyan, Tiomkin, and his
firm “breached the duty of care owed” to the Geragos Parties and
“caused [the Geragos Parties] to suffer injuries.” The fourth
cause of action alleged Abelyan and Tiomkin “knew” Abelyan’s
claims against the Geragos Parties were “not only false, but were
fabricated and used to make unlawful threats of State Bar
violations in an effort to extort the Geragos Firm.” Their
“unlawful and criminal conduct was extreme and outrageous”
and could “disrupt the Geragos Firm’s reputation and business.”
The fifth cause of action alleged Tiomkin and his firm
violated Business and Professions Code section 17200 when
Tiomkin “used his position as an attorney to attempt to file false
claims against [the Geragos Parties] and threatened them with
false and malicious complaints . . . to the State Bar . . . if they did
2 Rule 3.10(a) provides: “A lawyer shall not threaten to
present criminal, administrative, or disciplinary charges to
obtain an advantage in a civil dispute.”
Penal Code section 524 provides: “Every person who
attempts, by means of any threat, . . . to extort property or other
consideration from another is punishable.”
7
not pay his client tens of thousands of dollars.” Tiomkin knew
the Geragos Parties had legal representation, yet he contacted
Kazarian “in an attempt to circumvent [Kirakosian] and extort
[the Geragos Parties] directly.”
The Geragos Parties sought general damages, special
damages, punitive and exemplary damages, attorney fees and
costs.
III. Special Motions to Strike the Cross-Complaint
Abelyan, Tiomkin, and his firm filed special motions to
strike3 the Geragos Parties’ cross-complaint as a strategic lawsuit
against public participation under the anti-SLAPP statute, Code
of Civil Procedure section 425.16.4 They argued the causes of
action in the cross-complaint arise out of “privileged litigation
conduct” in connection with Abelyan’s civil complaint and
settlement discussions, and as such, the claims should be
stricken under section 425.16. They also argued the Geragos
Parties cannot demonstrate a probability of prevailing on their
claims because the litigation privilege per Civil Code section 47
applies. Their motions included a request for attorney fees and
costs per section 425.16, subdivision (c). Supporting declarations
of Abelyan and Tiomkin, as well as various exhibits, were filed
also.
3 Tiomkin filed an anti-SLAPP motion on September 30,
2020, and Abelyan filed a nearly identical anti-SLAPP motion on
October 8, 2020.
4 Undesignated statutory references are to the Code of Civil
Procedure.
8
Abelyan’s declaration iterated the information included in
part I above, entitled “Events Leading to Filing of Civil
Complaint.”
Tiomkin’s declaration provided:
Before filing suit on Abelyan’s behalf, Tiomkin attempted to
resolve the matter with the Geragos Firm and had discussions
with Kirakosian and Kazarian, “who purported to represent the
Geragos Firm and Mark Geragos.” Throughout these
discussions, “Kirakosian acted as the ‘bad cop,’ taking a very
aggressive approach that the Geragos Firm had no possible
liability” while “Kazarian appeared more willing to engage in a
reasonable discussion and potentially to resolve the matter.”
Neither ever suggested that Tiomkin should not contact Kazarian
or should deal only with Kirakosian.
On August 13, 2020, Tiomkin received a “meet and confer”
letter from Kirakosian—providing notice of the Geragos Parties’
intent to file a demurrer and motion to strike Abelyan’s
complaint and threatening to seek sanctions against Abelyan and
Tiomkin personally. Kirakosian’s letter, attached as an exhibit,
characterized Abelyan’s complaint as “fraudulent” and
“frivolous.” Kirakosian’s letter urged Tiomkin to refer to 1) the
Geragos Firm’s retainer agreement signed by Abelyan on
November 19, 2015, and 2) Abelyan’s November 18, 2016 letter to
Geragos—both of which were attached as exhibits.
At no point during the discussions held August 13 and 14,
2020 did Tiomkin threaten to report the Geragos Parties to the
State Bar or to pursue State Bar proceedings against them.
Kirakosian and Tiomkin “did discuss Mr. Geragos’ history of
State Bar investigations relating to similar conduct—i.e., taking
client funds without performing services.” Tiomkin “believed
9
these investigations would be relevant to show a pattern and
practice” and “intend[ed] to seek information about these
investigations in discovery.” Kirakosian, however, refused to
discuss any State Bar-related investigations into the Geragos
Firm. Email communications between Tiomkin and Kirakosian
were attached as exhibits.
Given Kirakosian’s “antagonistic tone,” Tiomkin contacted
Kazarian on August 18, 2020 to ascertain “whether she would
still be amenable to trying to resolve this matter.” Kazarian “at
no point suggested that she could not talk . . . about the case, or
that [Tiomkin] should talk with [Kirakosian].” Tiomkin “did not
threaten a State Bar complaint or proceeding during [his]
conversation” with Kazarian. At some point, Kazarian “stepped
away for a few minutes, stating that she wanted to consult with
another attorney” and upon her return, “immediately and
repeatedly brought up the possibility of a State Bar complaint
and asked whether [Abelyan and Tiomkin] were planning to file
one.” Tiomkin advised that they “had not decided at that point.”
Kazarian told Tiomkin “in no uncertain terms that if [they] were
going to settle this case, the settlement would have to include an
agreement that [Abelyan and Tiomkin] would not report to the
State Bar.” Tiomkin told Kazarian that he did not think they
“could validly agree to refrain from reporting attorney
misconduct, and likely could not make this a part of a settlement
agreement.” Kazarian brought up State Bar proceedings “at least
three times” during this conversation, “all following the break in
[their] conversation.” Tiomkin’s “only mention of a potential
State Bar proceeding was in response to [Kazarian’s] direct
questions.”
10
IV. Opposition to the Special Motions to Strike
On October 29, 2020, the Geragos Parties filed an
opposition to the special motions to strike. They argued
extortionate conduct is not protected by the anti-SLAPP statute
and relied on Rule 3.10 and the exception established in Flatley v.
Mauro (2006) 39 Cal.4th 299 (Flatley) in support. They argued
case law “make abundantly clear that Flatley should not be read
to be limited to . . . only ‘specific and extreme circumstances’ of
extortion” and that “veiled or ‘less than explicit’ threats . . . did
not prevent the Flatley exception from applying and would not
make the conduct protected.” They contend Tiomkin’s “explicit
threats of State Bar complaints are completely unrelated to the
underlying claims in the Complaint.” They also contend that
admissible evidence, i.e., a partial audio recording (and
transcript) by Kazarian of her telephone conversation with
Tiomkin, “conclusively demonstrates extortion as a matter of
law.” Finally, the Geragos Parties argue the litigation privilege
did not apply to Tiomkin’s statements to Kazarian, and that they
can establish a probability of prevailing on the merits of their
causes of action.
Supporting the opposition to the anti-SLAPP motion were
the declarations of Geragos, Qassim, Kazarian, and Kirakosian.
Geragos’s declaration provides: Kirakosian informed
Geragos that Tiomkin “made repeated statements concerning
State Bar complaints against [Geragos] as well as other repeated
statements that [he] would be in custody soon.” Geragos had “not
retained the services of [Kazarian] in connection to this matter
nor [had he] ever requested or authorized her to speak with
[Tiomkin] on [his] behalf.” Geragos learned from Kazarian that
Tiomkin “repeated his threats to report [Qassim] and [him] to the
11
State Bar if [they] did not immediately pay [Abelyan]
$27,500.00.” Geragos “felt extreme embarrassment” that
Tiomkin contacted “a fellow colleague who had zero involvement
in this dispute to discuss State Bar complaints against [him].”
He “began having difficulty sleeping” and became “nervous,
worried and anxious . . . because [he] believed . . . Tiomkin and
[Abelyan] would attempt to fabricate false criminal charges and
file a frivolous State Bar complaint against [him] in order to
obtain a settlement.” Geragos subsequently learned that
Abelyan’s and Tiomkin’s “extortion had been completed and [had]
indeed made the false allegations against [him] and [Qassim] to
the State Bar.”
Qassim’s declaration repeats the statements from, and is
nearly identical to, Geragos’s declaration.
Kirakosian’s declaration includes as exhibits a copy of
email communications from Tiomkin and a transcript of the
audio recording of Kazarian’s phone conversation with Tiomkin.
The declaration and exhibits provide: On August 13, 2020,
Kirakosian emailed Tiomkin to meet and confer regarding the
Geragos Parties’ intention to file a demurrer and motion to
strike. In response, Tiomkin “raised the issue of State Bar
violations” and requested “documents concerning relevant State
Bar investigations of [Geragos] and his associates pertaining to
his theft of client funds.” Tiomkin’s emails also stated, “I hope
Mr. Geragos is staying well. Has he managed to remain out-of-
custody,” and referred to Geragos’s recent “indictment as an
unnamed co-conspirator in the Avenatti case.” Tiomkin wrote
that the fee agreement “violates multiple State Bar rules” and
requested that Kirakosian “should familiarize [himself] with the
State Bar’s position on true retainers.” During Kirakosian’s
12
phone call with Tiomkin on August 14, 2020, Tiomkin
“unequivocally stated that his client would be filing a State Bar
complaint if the matter wasn’t promptly resolved.” Kirakosian
emailed Tiomkin and memorialized their phone conversation, to
which Tiomkin replied that Kirakosian had “mischaracterized the
conversation in its entirety.” On August 18, 2020, Kirakosian
was informed by Kazarian that Tiomkin reached out to her
directly to discuss the case. Kazarian told Kirakosian about
Tiomkin’s “settlement proposal”—“If the Geragos Firm pays
$27,500.00, [Tiomkin] will not report the matter to the State Bar
and the case would be dismissed.” Kirakosian told Kazarian that
the settlement proposal “mirrors the threats” Tiomkin made to
Kirakosian during their previous communications. Kazarian told
Kirakosian she recorded the phone conversation and gave him
the recording.
Kazarian’s declaration provides: On August 18, 2020, she
received “an unsolicited call” from Tiomkin wanting to discuss
Abelyan’s claims. Prior to this phone call, Kazarian had never
spoken to Tiomkin about Abelyan’s case. Tiomkin informed
Kazarian he “had just seen [her] recent post on the Los Angeles
County Bar Association’s criminal list serve in which [she]
recommended the Geragos Firm to another attorney.” Tiomkin
told Kazarian he “was not contacting [her] in [her] capacity as an
attorney for the Geragos Parties, but merely as a colleague of
[Geragos] to relay a settlement offer directly to [Geragos] as his
previous attempts to resolve the matter with [Kirakosian] had hit
a ‘dead-end.’ ” Tiomkin informed Kazarian that Abelyan had not
yet filed a State Bar complaint and would settle and refrain from
doing so if the Geragos Parties pay $27,500.00. “As an
experienced criminal defense attorney, [Kazarian] reasonably
13
believed that [Tiomkin] was in the commission of criminal
extortion.” She placed Tiomkin on hold and informed Kirakosian
of Tiomkin’s call. She then resumed her call with Tiomkin and
“legally record[ed] the conversation” to obtain evidence related to
the crime of extortion. She confirmed Tiomkin’s “previous
unrecorded statement” that Abelyan would not file a State Bar
complaint if the Geragos Parties returned the $27,500.00
retainer. Tiomkin told her he “didn’t know how he could formally
put this term into a written settlement agreement, because such
a term would not be allowed.” Tiomkin thereafter began
discussing the merits of the underlying case. “For unknown
reasons, the recording briefly stopped and [she] immediately
placed [Tiomkin] on hold. [She] immediately began recording
again and continued [her] conversation with [Tiomkin].” She
then provided the recording to Kirakosian.
V. Reply and Evidentiary Objections
Tiomkin concurrently filed a reply and evidentiary
objections to portions of the declarations of Geragos, Qassim,
Kirakosian, and Kazarian, as well as to some of the exhibits filed
in support of the opposition, including the transcript of the audio
recording.
In his reply, Tiomkin argues the Geragos Parties’ cross-
complaint “is intended purely to gain leverage by turning
opposing counsel into a co-defendant.” He argues there is no
violation of Rule 4.2 and refers to the Geragos Parties’ cross-
complaint which expressly describes Kazarian as “of the Geragos
Firm.” Tiomkin also argues the Geragos Parties are required to
show criminal extortion as a matter of law for the Flatley
exception to apply and failed to do so. The reply characterizes
the transcript of the audio recording as “partial, selective
14
excerpts” and argues the secret recording is illegal and
inadmissible: “[l]awyers are not allowed to record each other to
gain advantage in civil cases.” Tiomkin further argues even if
“these allegations are believed, stating that a client is unlikely to
pursue legal remedies if a case settles is a far cry from criminal
extortion.” Tiomkin contends Abelyan “had an absolute right to
report the Geragos Parties to the State Bar for mishandling
client funds. Merely implying that Abelyan might file a justified
State Bar complaint is not a criminal threat.”
Abelyan filed a reply incorporating by reference the
evidentiary objections and reply arguments by Tiomkin.
VI. Trial Court’s Ruling
On December 10, 2020, after argument, the trial court
granted both special motions to strike in their entirety. The
court sustained Tiomkin’s objections to the evidence attached to
Kirakosian’s declaration, “consisting of edited, partial recordings
of a phone call secretly taken by” Kazarian without Tiomkin’s
consent and found the recording and its transcript inadmissible.
As to the first prong, the court found “it is clear that the
allegations in the cross-complaint . . . depend upon a ‘written or
oral statement . . . made in connection with an issue under
consideration or review by a . . . judicial body, or any other official
proceeding authorized by law.’ ” All communicative acts
performed by attorneys as part of their representation of a client
in a judicial proceeding “ ‘are per se protected’ ” and “settlement
negotiations are ‘protected activity.’ ” The court further found
the Geragos Parties’ evidence is “not sufficient to meet the high
burden of producing conclusive evidence of illegal activity, and
thus [the] narrow exception [per Flatley] does not apply.”
15
As to the second prong, the court found Malin v. Singer
(2013) 217 Cal.App.4th 1283 (Malin) dispositive and the “Civil
Code section 47 litigation privilege applies as a matter of law.”
The court found the “entirety of the allegations in the cross-
complaint and the gravamen of each cause of action is related to
litigation-related communications.” It ruled the Geragos Parties
cannot demonstrate a probability of prevailing on their causes of
action.
Lastly, the trial court found Abelyan, Tiomkin, and the
Tiomkin firm “are entitled to recover their fees and costs as
established in a properly noticed motion.”
The Geragos Parties timely appealed.
DISCUSSION
I. Standard of Review
We review a trial court’s ruling on a special motion to
strike pursuant to section 425.16 under the de novo standard.
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788;
Park v. Board of Trustees of California State University (2017)
2 Cal.5th 1057, 1067 (Park).) “In other words, we employ the
same two-pronged procedure as the trial court in determining
whether the anti-SLAPP motion was properly granted.”
(Mendoza v. ADP Screening & Selection Services, Inc. (2010)
182 Cal.App.4th 1644, 1652.)
We consider “the pleadings, and supporting and opposing
affidavits stating the facts upon which the liability or defense is
based.” (§ 425.16, subd. (b)(2).) In considering the pleadings and
declarations, we do not make credibility determinations or
compare the weight of the evidence; instead, we accept the
opposing party’s evidence as true and evaluate the moving party’s
16
evidence only to determine if it has defeated the opposing party’s
evidence as a matter of law. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)
As for the trial court’s rulings on evidentiary objections, we
apply the abuse of discretion standard. (Daimler Trucks North
America LLC v. Superior Court (2022) 80 Cal.App.5th 946, 960.)
An erroneous evidentiary ruling requires reversal only if there is
a reasonable probability that a result more favorable to the
appealing party would have been reached in the absence of the
error. (Ibid.)
II. Applicable Law
A. The Anti-SLAPP Statute
Section 425.16 provides: “A cause of action against a person
arising from any act of that person in furtherance of the person’s
right of petition . . . 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.” (§ 425.16, subd. (b)(1).) An “ ‘act in furtherance of a
person’s right of petition or free speech . . . in connection with a
public issue’ ” is defined in section 425.16 to include, in relevant
part: (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”; or (3) “any other conduct
in furtherance of the exercise of the constitutional right of
petition . . . .” (Id., subd. (e).)
17
The Legislature enacted section 425.16 to prevent and
deter “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 purpose of the
anti-SLAPP law is “not [to] 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.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) To accomplish this
purpose, the Legislature expressly specifies the statute “be
construed broadly.” (§ 425.16, subd. (a).)
When a party moves to strike a cause of action under the
anti-SLAPP law, a trial court evaluates the special motion to
strike using a two-prong test: (1) has the moving party “made a
threshold showing that the challenged cause of action arises from
protected activity” (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056 (Rusheen)); and, if it has, (2) has the non-moving party
demonstrated that the challenged cause of action has “minimal
merit” by making “a prima facie factual showing sufficient to
sustain” a judgment in its favor? (Baral, supra, 1 Cal.5th at
pp. 384–385; Navellier v. Sletten (2002) 29 Cal.4th 82, 93–94
(Navellier); see also § 425.16, subd. (b)(1)). After the first prong
is satisfied by the moving party, “the burden [then] shifts to the
[non-moving party] to demonstrate that each challenged claim
based on protected activity is legally sufficient and factually
substantiated.” (Baral, at p. 396.)
B. Crime of Extortion, Generally
Extortion is not a constitutionally protected form of speech.
(Flatley, supra, 39 Cal.4th at p. 328.)
18
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; see Malin, supra,
217 Cal.App.4th at p. 1299 [demand letter did not fall within
Flatley exception where it did not fall within any of the § 519
categories].) Every person who, with intent to extort any money
or other property from another, sends or delivers to a person any
letter or other writing, whether subscribed or not, expressing or
implying, or adapted to imply, any threat as specified in Penal
Code section 519, is punishable in the same manner as if such
money or property were actually obtained by means of such
threat. (Pen. Code, § 523.)
“Extortion has been characterized as a paradoxical crime in
that it criminalizes the making of threats that, in and of
themselves, may not be illegal. ‘[I]n many blackmail cases, the
threat is to do something in itself is perfectly legal, but that
threat nevertheless becomes illegal when coupled with a demand
for money.’ ” (Flatley, supra, 39 Cal.4th at p. 326.) Additionally,
19
“threats to do the acts that constitute extortion under Penal Code
section 519 are extortionate whether or not the victim committed
the crime or indiscretion upon which the threat is based and
whether or not the person making the threat could have reported
the victim to the authorities or arrested the victim.” (Id. at
p. 327.)
III. Prong 1: Arising from Protected Activity
The Geragos Parties argue the trial court improperly found
that Tiomkin’s extortion attempts, on behalf of Abelyan,
constituted conduct taken in furtherance of their right of petition
and “[i]n so finding, . . . improperly sustained an objection to [the
Geragos Parties’] uncontroverted, admissible evidence that
conclusively established the complained-of illegal extortion.”
We conduct our review de novo.
Step one of the anti-SLAPP analysis requires us to decide
whether the moving parties—here, Abelyan, Tiomkin and his
firm—have shown the claims in the cross-complaint arise from an
act in furtherance of Abelyan’s constitutional right to petition,
i.e., protected activity. (§ 425.16, subd. (b)(1); Park, supra,2 Cal.5th at p. 1061.) “A claim arises from protected activity
when that activity underlies or forms the basis for the claim.”
(Park, at p. 1062.)
It is evident on the face of the cross-complaint that the
Geragos Parties’ claims are entirely premised on three litigation
and/or settlement communications: (1) the email communications
between Tiomkin and Kirakosian; (2) the telephone conversation
between Tiomkin and Kirakosian; and (3) the telephone
conversation between Tiomkin and Kazarian.
There is no question that communications sent in
anticipation of litigation or as part of ongoing litigation constitute
20
legitimate speech or petitioning activity protected under the anti-
SLAPP statute. (Cabral v. Martins (2009) 177 Cal.App.4th
471, 480 [“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”]; Seltzer v. Barnes (2010)
182 Cal.App.4th 953, 963 [“ ‘[a]n attorney’s communication with
opposing counsel on behalf of a client regarding pending litigation
directly implicates the right to petition and thus is subject to a
special motion to strike’ ”]; Navellier, supra, 29 Cal.4th at p. 90
[settlement negotiations are within the scope of § 425.16].)
However, this protection does not extend to communication
or conduct that is, as a matter of law, illegal. By contending the
communications constituted extortion, the Geragos Parties argue
the petitioning activity is unprotected. The watershed case in
this regard is Flatley.
Flatley was a well-known entertainer and performer who
sued attorney Mauro for conduct arising out of his representation
of a client (Robertson) who claimed Flatley raped her in his Las
Vegas hotel suite. (Flatley, supra, 39 Cal.4th at p. 305.) Flatley
asserted several causes of action, including civil extortion, based
on a demand letter from Mauro. (Ibid.) Mauro responded to the
suit by filing an anti-SLAPP motion, claiming the demand letter
was “a prelitigation settlement offer in furtherance of his
constitutional right of petition.” (Id. at p. 311.)
Our Supreme Court examined the demand letter, which
included “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 to Robertson of
which Mauro would receive 40 percent.” (Flatley, supra,
21
39 Cal.4th at p. 329.) “The key passage in Mauro’s letter is . . .
where Flatley is warned that, unless he settles, ‘an in-depth
investigation’ will be conducted into his personal assets to
determine punitive damages and this information will then
‘BECOME A MATTER OF PUBLIC RECORD, AS IT MUST
BE FILED WITH THE COURT . . . . [¶] Any and all
information, including Immigration, Social Security
Issuances and Use, and IRS and various State Tax Levies
and information will be exposed. We are positive the media
worldwide will enjoy what they find.’ ” (Ibid.) The demand
letter’s “final paragraph warns Flatley that, along with the filing
of suit, press releases will be disseminated to numerous media
sources and placed on the Internet.” (Ibid.) In Mauro’s follow-up
phone calls, Mauro “named the price of his and Robertson’s
silence as ‘seven figures’ or, at minimum, $1 million.” (Ibid.)
The Supreme Court concluded that Mauro’s letter and
subsequent phone calls constituted “extortion as a matter of law”
and were not constitutionally protected speech or petitioning
activities under the anti-SLAPP statute. (Flatley, supra,
39 Cal.4th at pp. 328, 330 [“These communications threatened to
‘accuse’ Flatley of, or ‘impute to him,’ ‘crime[s]’ and ‘disgrace’
(Pen. Code, § 519, subds. 2, 3) unless Flatley paid Mauro a
minimum of $1 million of which Mauro was to receive
40 percent.”].) The threat to disclose “criminal activity entirely
unrelated to any alleged injury suffered by Mauro’s client
‘exceeded the limits of [Mauro’s] representation of his client’ and
is itself evidence of extortion.” (Id. at pp. 330–331.)
We note two very important distinctions the Supreme
Court discussed in Flatley. First, it “note[d] that, in the
proceedings below, Mauro did not deny that he sent the letter nor
22
did he contest the version of the telephone calls set forth in [the]
declarations in opposition to the motion to strike.” (Flatley,
supra, 39 Cal.4th at pp. 328–329.) This is why the Court viewed
the evidence as uncontroverted as a matter of law. (Id. at p. 329.)
Second, the Court emphasized that its conclusion that Mauro’s
communications constituted criminal extortion as a matter of law
was “based on the specific and extreme circumstances of this
case.” (Id. at p. 332, fn. 16, italics added.) The Flatley court
stated: “[O]ur 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.” (Ibid.)
Unlike Mauro in Flatley who conceded the content of the
communications (telephone calls and letter), here, Tiomkin does
not concede that he engaged in extortionate or illegal conduct as
alleged by the Geragos Parties. Thus, the applicability of the
Flatley exception hinges on whether the Geragos Parties provided
uncontroverted evidence conclusively showing Abelyan and/or
Tiomkin committed extortion as a matter of law. In analyzing
the three litigation/settlement communications raised in the
cross-complaint, we bear in mind the Supreme Court’s comment
in Flatley that it found extortion as a matter of law “based on the
specific and extreme circumstances” of that case. (Flatley, supra,
39 Cal.4th at p. 332, fn. 16.)
A. Telephone conversation between Tiomkin and
Kirakosian
The Geragos Parties’ cross-complaint alleged that
Kirakosian called Tiomkin on August 14, 2020, at which time
Tiomkin “discuss[ed] the immediate filing of a State Bar
23
complaint against the Geragos Firm.” Kirakosian requested
Tiomkin “refrain from making such veiled threats.” The
conversation ended when Tiomkin stated the Geragos Firm
should return the $27,500 back to Abelyan “or Abelyan would be
immediately filing a State Bar complaint.”
The evidence about the August 14, 2020 telephone
conversation includes Kirakosian’s declaration submitted in
support of the Geragos Parties’ opposition and Tiomkin’s
declaration submitted in support of his and Abelyan’s special
motions to strike. Kirakosian declared Tiomkin “unequivocally
stated that his client would be filing a State Bar complaint if the
matter wasn’t promptly resolved,” whereas Tiomkin declared that
at no point during the discussion did he threaten to report the
Geragos Parties to the State Bar or to pursue State Bar
proceedings against them.
The declarations provide conflicting accounts of what was
said during the August 14, 2020 telephone conversation. We do
not solely rely on the Geragos Parties’ or Kirakosian’s
declarations. (Flickinger v. Finwall (2022) 85 Cal.App.5th
822, 837 (Flickinger) [their “subjective and self-serving
interpretation cannot establish extortion as a matter of law”].)
The declarations provided by both sides create a genuine issue of
material fact (Soukup, supra, 39 Cal.4th at p. 286) and in no way
qualify as uncontroverted evidence that conclusively establishes
criminal extortionate conduct by Tiomkin.
B. Email communication between Tiomkin and
Kirakosian
The cross-complaint alleged Tiomkin raised the issue of
State Bar violations to Kirakosian via email on August 13 and 14,
24
2020, and made veiled threats to report the Geragos Parties to
the State Bar unless they paid $27,500.
The evidence as to this includes Tiomkin’s declaration in
support of the anti-SLAPP motion, Kirakosian’s declaration in
support of the opposition to the motion, and copies of the emails
which were attached as exhibits to their declarations.
Tiomkin’s emails sent August 13 and 14, 2020 provide, in
relevant part:
• “I appreciate your admission that your client stole
$27,500 of my client’s funds for unspecified
‘investigation’ services. . . . [¶] . . . [¶] Also, as long as
you are providing documentation, would you provide
all documents concerning relevant State Bar
investigations of Mr. Geragos and his associates
pertaining to his theft of client funds?”
• “Setting aside the fact that the ‘fee agreement’
violates multiple State Bar rules, . . . . [¶] . . . [¶] . . . I
would be fascinated to learn what ‘investigation’ Mr.
Geragos performed for $27,500. . . . I think that you
should familiarize yourself with the State Bar’s
position on true retainers, if this is going to be Mr.
Geragos’ defense.”
• “I . . . inquired about whether Mr. Geragos was going
to be available for deposition, given his indictment as
an unnamed co-conspirator in the Avenatti case, and
the possibility that he might be in federal custody in
the near future. You said that you were aware of the
federal investigation, but that at this point, no
charges have bee filed against Geragos. [¶] I also
asked if you were aware of a State Bar investigation
25
related to Geragos’ theft of Mr. Abelyan’s funds. You
stated that there are multiple inquiries involving
Geragos and you were not going to get into them.”
• “I hope Mr. Geragos is staying well. Has he managed
to remain out-of-custody?”
The Geragos Parties argue “Tiomkin’s veiled threats in
emails to Kirakosian . . . constitute documented evidence of
extortion that is undisputed.” They contend the facts of this case
are analogous to Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799(Mendoza) and Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405(Stenehjem). We briefly recite their facts.
In Mendoza, Mendoza received a demand letter from
attorney Hamzeh sent on behalf of his client, Mendoza’s former
employer. The letter provides: “ ‘We are in the process of
uncovering the substantial fraud, conversion, and breaches of
contract that [Mendoza] has committed on my client. . . . To
date[,] we have uncovered damages exceeding $75,000 . . . . If
[you do] not agree to cooperate with our investigation and provide
us with a repayment of such damages caused, we will be forced to
proceed with filing a legal action . . . as well as reporting [you] to
the California Attorney General, the Los Angeles District
Attorney, [and] the Internal Revenue Service.’ ” (Mendoza,
supra, 215 Cal.App.4th at p. 802, italics added.) The reviewing
court held that the demand letter constituted extortion as a
matter of law because it involved a threat to report criminal
conduct coupled with a demand for money. (Id. at p. 806.)
In Stenehjem, the cross-defendant litigant sent an email
(the purported settlement demand) that “threatened to expose
Sareen [(his former employer’s CEO)] to federal authorities for
alleged violations of the False Claims Act unless he negotiated a
26
settlement of Stenehjem’s private claims,” including defamation
and wrongful termination. (Stenehjem, supra, 226 Cal.App.4th at
p. 1423, italics added.) The email demand “mentioned a potential
qui tam suit . . . and referred to potential involvement of the
United States Attorney General, Department of Justice, and
Department of Defense.” (Id. at pp. 1409–1410.) The Stenehjem
court found that the absence of an express threat or a demand for
a specific sum of money in the email did not negate its
fundamental nature as an extortionate writing. (Id. at p. 1424.)
We find these cases inapposite. Nowhere in Tiomkin’s
emails do we find a threat to file a State Bar claim coupled with a
demand for money. In addition, unlike the alleged criminal
activity that the cross-defendant litigant in Stenehjem threatened
to expose in a qui tam action, which was “ ‘entirely unrelated’ ” to
any alleged injury suffered by him in his defamation and
wrongful termination claims (Stenehjem, supra, 226 Cal.App.4th
at p. 1423), Tiomkin’s communications were related to the alleged
injury his client suffered (i.e., breach of contract and promissory
fraud claims for payment of a retainer to an attorney for services
which were never rendered).
We agree with Abelyan and Tiomkin that Malin is
dispositive. In Malin, attorney Singer sent a demand letter to his
client’s business associates Malin and Moore, announcing his
client’s intention to sue them for numerous wrongs. He attached
to the demand letter a copy of the draft complaint with claims for
embezzlement, breach of fiduciary duty, and conversion. (Malin,
supra, 217 Cal.App.4th at p. 1289.) Singer accused Malin of
embezzling and misusing company resources to arrange sexual
liaisons with older men such as “Uncle Jerry,” a judge whose
name was redacted, with a photo of the judge. (Ibid.) The letter
27
specified that Singer’s client “ ‘will file the Complaint against you
and your other joint conspirators unless this matter is resolved to
[the] client’s satisfaction within five (5) business days.’ ” (Ibid.)
Malin sued for civil extortion, among other claims, and Singer
and his client moved to strike Malin’s complaint pursuant to the
anti-SLAPP statute. (Id. at p. 1290.)
The reviewing court concluded Singer’s demand letter was
protected communication in anticipation of litigation and did not
constitute criminal extortion as a matter of law “under the
narrow exception articulated in Flatley.” (Malin, supra,
217 Cal.App.4th at pp. 1294, 1299.) The court reasoned that “[i]n
contrast with the demand letters in Flatley and Mendoza,
Singer’s demand letter did not expressly threaten to disclose
Malin’s alleged wrongdoings to a prosecuting agency or the public
at large.” (Id. at p. 1298.) The court further found the “secret”
that would allegedly expose Malin to disgrace was inextricably
tied to Singer’s client’s pending complaint, as the demand letter
accused Malin of embezzling money and simply informed him
that Singer’s client knew how he had spent those funds. (Id. at
p. 1299.)
As in Malin, we conclude Tiomkin’s comments did not fall
under the narrow Flatley exception. Misappropriation of client
funds is the gravamen of the civil action against the Geragos
Parties. If a threat to report such conduct to the State Bar was
made, it had a reasonable connection to the underlying dispute
and therefore is not comparable to the “extreme” conduct found
unprotected by Flatley.
The Geragos Parties’ contention that Tiomkin’s
communications violated rule 3.10(a), which prohibit an attorney
from “threaten[ing] to present criminal, administrative, or
28
disciplinary charges to obtain an advantage in a civil dispute,”
does not establish that those communications constituted
criminal extortion as a matter of law. Even assuming the
Geragos Parties could establish Tiomkin had violated rule
3.10(a), that violation would not constitute criminal conduct
within the narrow Flatley exception, which is limited to criminal
conduct and not a violation of the Rules of Professional Conduct
or a civil statute. (See Bergstein v. Stroock & Stroock & Lavan
LLP (2015) 236 Cal.App.4th 793, 806 [court’s use in Flatley of the
phrase “illegal” was intended to mean criminal, and not merely
violative of a statute]; see Fremont Reorganizing Corp. v. Faigin
(2011) 198 Cal.App.4th 1153, 1169 [“Conduct in violation of an
attorney’s duties of confidentiality and loyalty to a former client
cannot be ‘illegal as a matter of law’ ” under the Flatley
exception]; see also Flickinger, supra, 85 Cal.App.5th at p. 836
[“The Flatley court could have, but did not, limit its analysis to
the fact that the threat was itself a breach of ethical rules.”].)
Finally, while the Geragos Parties argue Tiomkin
threatened “criminal charges against Geragos” by asking whether
Geragos has “managed to remain out-of-custody” in one of his
emails to Kirakosian, a review of the entire email thread makes
apparent Tiomkin’s question is in reference to the allegations
surrounding the Avenatti matter. In Flatley, the Supreme Court
cautioned 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” do not “necessarily
constitute extortion.” (Flatley, supra, 39 Cal.4th at p. 332, fn.
16.) This rings true here, as a review of the emails make clear
both attorneys were zealously, aggressively, and somewhat
29
rudely representing their respective clients. While the email
communications do not portray the professional civility and
decorum we would hope for, it in no way amounts to a conclusive
showing of extortion as a matter of law. As stated in Flickinger,
supra, 85 Cal.App.5th at p. 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.”
(Italics added.) That is not the case with these emails.
C. Telephone communication between Tiomkin and
Kazarian
We preliminarily address the partial audio recording (and
transcript), which the Geragos Parties argue is admissible. We
conclude the trial court did not err in finding the audio recording
inadmissible.
Penal Code section 632, subdivision (a) provides: “A person
who, intentionally and without the consent of all parties to a
confidential communication, uses an electronic . . . recording
device to eavesdrop upon or record the confidential
communication, whether the communication is carried on among
the parties in the presence of one another or by means of a . . .
telephone . . . shall be punished.” (Pen. Code, § 632, subd. (a).)
Penal Code section 632, subdivision (d) specifies: “Except as proof
in an action or prosecution for violation of this section, evidence
obtained as a result of eavesdropping upon or recording a
confidential communication in violation of this section is not
admissible in any judicial, administrative, legislative, or other
proceeding.” (Pen. Code, § 632, subd. (d).)
The Geragos Parties contend for the first time on appeal
that Kazarian’s recording is not governed by Penal Code section
632 because her conversation with Tiomkin was not a
30
confidential communication. “Tiomkin contacted Kazarian—a
third-party to this action who does not represent any of the
parties involved and had no prior knowledge of this dispute—in
order to convey a message to her colleague” and thus does not
“ ‘reasonably indicate [Tiomkin] desire[d] it to be confined’ ” to
the parties involved.
This argument fails for two reasons. First, the record on
appeal makes clear that the Geragos Parties did not raise this
argument before the trial court. “ ‘As a general rule, theories not
raised in the trial court cannot be asserted for the first time on
appeal; appealing parties must adhere to the theory (or theories)
on which their cases were tried. This rule is based on fairness—it
would be unfair, both to the trial court and the opposing litigants,
to permit a change of theory on appeal.’ ” (Nellie Gail Ranch
Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.)
Second, the Geragos Parties’ representation that Kazarian
was “a third-party . . . who does not represent any of the parties
involved and had no prior knowledge of this dispute” is not well
taken. Their cross-complaint expressly states Kazarian is “of the
Geragos Firm” and “a representative of the Geragos Firm.” A
litigant is bound by facts pleaded in a verified complaint. (Acuna
v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402,
1416; see Brecher v. Gleason (1972) 27 Cal.App.3d 496, 499, fn. 1
[“A verified assertion in a pleading is a conclusive concession of
the truth of the matter pleaded.”].)
The Geragos Parties next contend Penal Code section 633.5
exempts Kazarian’s recording from exclusion by Penal Code
section 632 because Kazarian “initiated the recordings to obtain
evidence that she reasonably believed would show Tiomkin
committing extortion.” Penal Code section 633.5 provides that
31
section 632 does “not prohibit one party to a confidential
communication from recording the communication for the
purpose of obtaining evidence reasonably believed to relate to the
commission by another party to the communication of the crime
of extortion, kidnapping, bribery, any felony involving violence
against the person, [and] do[es] not render any evidence so
obtained inadmissible in a prosecution for extortion, kidnapping,
bribery, . . . or any crime in connection therewith.” (Pen. Code,
§ 633.5, italics added.)
Thus, Penal Code section 633.5’s express language
narrowly permits use of a recording of a confidential
communication “in a prosecution for extortion, kidnapping,
bribery” and other expressly specified crimes. Nevertheless, the
Geragos Parties argue Penal Code section 633.5 also allows for its
use in civil actions. We have reviewed the case authority the
Geragos Parties have cited and find that none specify that
nonconsensual recordings are admissible evidence in civil actions.
Indeed, PPFA v. Center for Medical Progress (2016)
214 F.Supp.3d 808, 854, one of the cited cases, provides that
Penal Code section 633.5 “is an affirmative defense to liability
under [Penal Code] section 632” and does not stand for the
proposition that unconsented recordings are admissible evidence
in civil actions.
Accordingly, the Geragos Parties fail to show an abuse of
discretion by the trial court in ruling the partial audio recording
inadmissible in the civil action.
Without the recording, the only evidence about the
telephone conversation between Tiomkin and Kazarian are their
respective declarations, which result in a he-said-she-said conflict
as to what was actually said. This does not equate to conclusive
32
evidence of extortion as a matter of law. “If . . . a factual dispute
exists about the legitimacy of the defendant’s conduct, it 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,
39 Cal.4th at p. 316.)
We find none of these communications presents extortion
as a matter of law. We conclude Tiomkin and Abelyan made the
threshold showing that the Geragos Parties’ cross-complaint is
based on protected activity and thus subject to the anti-SLAPP
statute.
IV. Prong 2: Probability of Prevailing
We proceed to prong two of the anti-SLAPP analysis—
whether the Geragos Parties carried their burden of establishing
a probability of prevailing on the causes of action of their cross-
complaint.
The principal difficulty the Geragos Parties face in showing
a probability of prevailing on their claims is California’s litigation
privilege codified in Civil Code section 47, subdivision (b).
Regardless of whether the Geragos Parties have generally
averred the elements of the five causes of action in their cross-
complaint, they cannot rebut Tiomkin’s and Abelyan’s litigation
privilege defense.
The principal purpose of the litigation privilege is to afford
litigants and witnesses the utmost freedom of access to the courts
without fear of harassment in subsequent derivative actions.
(People ex rel. Gallegos v. Pacific Lumber Co. (2008)
158 Cal.App.4th 950, 958 (Gallegos).) “The usual formulation is
that the privilege applies to any communication (1) made in
judicial or quasi-judicial proceedings; (2) by litigants or other
33
participants authorized by law; (3) to achieve the objects of the
litigation; and (4) that have some connection or logical relation to
the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The
privilege is an absolute privilege and bars all tort cases of action
except a claim of malicious prosecution. (Flatley, supra,39 Cal.4th at p. 322.) The privilege has been applied in
“numerous cases” involving “fraudulent communication or
perjured testimony.” (Silberg, at p. 218.) The litigation privilege
protects even communication made with an intent to harm, so
long as the communication is made in “relation” to a
pending/ongoing or genuinely contemplated judicial or other
official proceeding. (Civ. Code, § 47, subd. (b); Gallegos, at
pp. 958–959; Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th
1296, 1302 [the litigation privilege applies “regardless of the
existence of malice or intent to harm”].)
The litigation privilege is “not limited to statements made
during a trial or other proceedings, but may extend to steps taken
prior thereto, or afterwards.” (Rusheen, supra, 37 Cal.4th at
p. 1057.) A prelitigation communication is privileged only if it
relates to litigation that is contemplated in good faith and under
serious consideration. (Flickinger, supra, 85 Cal.App.5th at
p. 840.) The requirement of good faith contemplation and serious
consideration provides some assurance that the communication
has some connection or logical relation to a contemplated action
and is made to achieve the objects of the litigation. (Ibid.)
Whether a prelitigation communication relates to litigation that
is contemplated in good faith and under serious consideration is
an issue of fact. (Ibid.)
For instance, in Malin, supra, 217 Cal.App.4th at p. 1301,
the reviewing court explained, “In order for a prelitigation
34
communication such as [attorney] Singer’s demand letter to be
privileged under Civil Code section 47, subdivision (b), it must
‘relate[] to litigation that is contemplated in good faith and under
serious consideration.’ ” The court then found the litigation
privilege did apply to Singer’s demand letter, “given the
similarity of the sexual misconduct allegations in both the letter
and subsequent complaint.” (Ibid.) The court concluded the
demand letter is protected by the privilege as it was “logically
connected to litigation that was contemplated in good faith and
under serious consideration when the letter was sent.” (Id. at
p. 1302.) Similarly, in Flickinger, supra, 85 Cal.App.5th at
p. 840, we found the litigation privilege applied to the defendant’s
prelitigation letter as it “related to litigation threatened by
plaintiff against defendant’s client” and “bore a connection or
logical relation to the litigation and advanced [the defendant’s
client‘s] interest in avoiding the litigation.”
Here, the cross-complaint is based on discussions between
counsel—via email and telephone call—where a potential State
Bar complaint was referenced in connection with a pending
lawsuit. The communication thus meets the criteria stated in
Malin and in Flickinger—it bears a connection or logical relation
to ongoing litigation initiated by Abelyan via his civil complaint
and his counsel Tiomkin’s efforts to settle and avoid further
litigation. In addition, the communication complained of was
made in relation to not just an ongoing civil lawsuit, but a
potential State Bar action as well. (See Kashian v. Harriman
(2002) 98 Cal.App.4th 892, 913 [the litigation privilege “ ‘includes
statements made to initiate official action’ ”].) Geragos’s
declaration, submitted in support of the Geragos Parties’
opposition, provides that Abelyan and/or Tiomkin indeed
35
submitted “allegations against [Geragos] and [Qassim] to the
State Bar.” Thus, there can be no doubt that Abelyan genuinely
contemplated this State Bar action, which is the pivotal issue as
to the applicability of the litigation privilege in the context of
demands made prior to the actual commencement of threatened
recourse. (See Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1251; Feldman v. 1100 Park Lane
Associates (2008) 160 Cal.App.4th 1467, 1489–1490.)
The Geragos Parties also contend we “should reverse the
determination of the [t]rial [c]ourt and hold that the litigation
privilege does not apply to Tiomkin’s communication with
Kazarian.” They argue Kazarian did not represent the Geragos
Parties and did not have a substantial interest in this matter.
However, as already discussed in the preceding section, the cross-
complaint expressly states Kazarian is “a representative of the
Geragos Firm.”
In short, given the absolute nature of the litigation
privilege, the Geragos Parties did not carry their burden of
showing a probability of overcoming Tiomkin’s and Abelyan’s
litigation privilege defense. Accordingly, the trial court properly
granted the special motions to strike the cross-complaint.
V. Attorney Fees
Lastly, the Geragos Parties’ sole basis for challenging the
award of attorney fees and costs to Tiomkin and Abelyan under
section 425.16, subdivision (c) is that the trial court erred in
granting the anti-SLAPP motion. Because we affirm the order
granting the anti-SLAPP motion, we also affirm the award of
attorney fees and costs.
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Abelyan and Tiomkin request that we award them attorney
fees on appeal. They may request an award of attorney fees by a
properly filed motion with the trial court.
DISPOSITION
The trial court’s order sustaining respondents’ evidentiary
objections is affirmed. The order granting the anti-SLAPP
motion is affirmed. The trial court’s attorney fee award made
pursuant to section 425.16, subdivision (c) is also affirmed.
Respondents shall recover their costs on appeal. (Cal. Rules of
Court, rule 8.278(a)(1).)
CERTIFIED FOR PUBLICATION
STRATTON, P. J.
We concur:
*
GRIMES, J. HARUTUNIAN, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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