Flatley v. Mauro

46 Cal.Rptr.3d 606

39 Cal.4th 299

139 P.3d 2

Michael FLATLEY, Plaintiff and Respondent, v. D. Dean MAURO, Defendant and Appellant.

No. S128429.

Supreme Court of California.

July 27, 2006.

Sedgwick, Detert, Moran & Arnold, James J.S. Holmes, Christina J. Imre, Douglas J. Collodel, Orly Degani, Los Angeles, and Wendy L. Wilcox for Defendant and Appellant.

Greenberg Glusker Fields Claman Machtinger & Kinsella, Bertram Fields and Ricardo P. Cestero, Los Angeles, for Plaintiff and Respondent.

Levy, Ram & Olson, Karl Olson, Erica L. Craven, San Francisco; Thomas W. Newton, Sacramento; Karlene W. Goller, Los Angeles; Harold W. Fuson, Jr., La Jolla; Stephen J. Burns, Sacramento; Levine Sullivan Koch & Schulz and James E. Grossberg for California Newspaper Publishers Association, Los Angeles Times, The Copley Press, Inc., McClatchy Newspapers, Inc., and the Orange County Register as Amici Curiae.

Bill Lockyer, Attorney General, Tom Greene, Chief Assistant Attorney General, Theodora Berger, Assistant Attorney General, Richard M. Frank, Edward G. Weil and Susan S. Fiering, Deputy Attorneys General, as Amici Curiae.

MORENO, J.

[139 P.3d 305]

Plaintiff Michael Flatley, a well-known entertainer, sued defendant D. Dean Mauro, an attorney, for civil extortion, intentional infliction of emotional distress and wrongful interference with economic advantage. Flatley's action was based on a demand letter Mauro sent to Flatley on behalf of Tyna Marie Robertson, a woman who claimed that Flatley had raped her, and on subsequent telephone calls Mauro made to Flatley's attorneys, demanding a seven-figure payment to settle Robertson's claims. Mauro filed a motion to strike Flatley's complaint under the anti-SLAPP statute.¹ (Code Civ. Proc., § 425.16.) He argued that the letter was a prelitigation settlement offer and therefore Flatley's complaint arose from Mauro's exercise of his constitutionally protected right of petition. The trial court denied the motion. The Court of Appeal held that, because Mauro's letter and subsequent telephone calls constituted criminal extortion as a matter of law, and extortionate speech is not constitutionally protected, the anti-SLAPP statute did not apply. Therefore, it affirmed denial of Mauro's motion to strike. We granted Mauro's petition for review.

We conclude that, consistent with the legislative intent underlying the anti-SLAPP statute as revealed by the statutory language, and consistent with our existing anti-SLAPP jurisprudence, a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff's complaint. Applying this principle in the specific circumstances of the case before us, we agree with the Court of Appeal's conclusion. Mauro's communications constituted criminal extortion as a matter of law and, as such, were unprotected by constitutional guarantees of free speech or petition. Therefore, the anti-SLAPP statute does not apply. Accordingly, we affirm the decision of the Court of Appeal.

I. FACTS AND PROCEDURAL HISTORY

Michael Flatley is a performer and dance impresario who owns "the stock of corporations that present live performances by Irish dance troupes throughout the world." On March 4, 2003, Tyna Marie Robertson sued Flatley in Illinois for battery and intentional infliction of emotional distress based on allegations that Flatley had raped her in his hotel suite in Las Vegas on the night of October 19-20, 2002. Robertson was represented by D. Dean Mauro,

[139 P.3d 306]

an Illinois attorney. Robertson and Mauro then appeared on television, where Robertson described the alleged rape "in extremely lurid detail."²

On March 6, 2003, Flatley filed his complaint in the present action in California against Mauro, Robertson and Doe defendants.³ In a second amended complaint, Flatley alleged five causes of action for civil extortion, defamation, fraud, intentional infliction of emotional distress, and wrongful interference with prospective economic advantage. The civil extortion, intentional infliction of emotional distress and wrongful interference causes of action were alleged against all defendants; the defamation and fraud causes of action were alleged against Robertson alone.

Mauro answered with a general denial and asserted various affirmative defenses including that Flatley's claims were barred by section 425.16, the anti-SLAPP statute. On August 1, 2003, Mauro filed a motion to strike Flatley's complaint under that statute.

Flatley's opposition to the motion argued that Mauro's communications constituted criminal extortion and were therefore not protected by the anti-SLAPP statute. He argued further that he could demonstrate a probability of prevailing on the merits. In support of his opposition, Flatley filed several declarations, including his own and those of his personal secretary, Thomas Trautmann, and his attorneys, John Brandon, Bertram Fields, and Richard Cestero.⁴ [139 P.3d 307]

The declarations submitted by Flatley set forth the following scenario:

Flatley met Robertson in Las Vegas sometime before October 2002. Robertson was very friendly and Flatley gave her the telephone number of his personal secretary, Thomas Trautmann (Trautmann) in the event she wanted to reach Flatley.

In October 2002, Robertson called Trautmann to arrange a rendezvous with Flatley. On October 19, 2002, Robertson arrived at Flatley's two-bedroom suite in the Venetian Hotel in Las Vegas. She was told that one room was for Flatley and the other was for Trautmann. Robertson put her belongings in Flatley's bedroom. She did not request alternate accommodations or protest the accommodations offered.

That evening, Flatley and Robertson had dinner together. Upon returning to Flatley's hotel room, Robertson excused herself to the bathroom. Flatley disrobed and got into bed. Robertson reappeared, nude, and entered Flatley's bed, where she remained for the night. According to Flatley, everything that transpired between him and Robertson that night was consensual. At no time did Trautmann, who was in the next room with the door open, hear any cry or complaint of any kind.

The next morning, Robertson entered the common area of the suite, and kissed Flatley in Trautmann's presence. Her demeanor was relaxed and happy. She ate breakfast with Flatley, speaking affectionately to him and cordially to Trautmann. Upon leaving, she kissed Flatley again and said she hoped to see him again.

On January 2, 2003, Mauro sent a letter addressed to Flatley that was received by Flatley's attorney, John Brandon. The letter emphasized certain text using various font sizes, boldface type, capital letters, underlining, and italics.⁵ In small print, it stated: "This communication is governed by all applicable common law decisions of the State of Illinois and Rule 408 of the U.S. Federal Rules of Evidence. All information contained herein is for settlement purposes only." The subject line stated in all-capital, boldface, underlined type: "LAWSUIT AGAINST MICHAEL FLATLEY, INDIVIDUALLY, AND UNICORN ENTERTAINMENT, INC., AND THE

[139 P.3d 308]

VENITION [sic] RESORT-HOTEL-CASINO VENTURE GROUP[.]" Mauro identified his client as "Jane Doe" and referred to a report on file with the Las Vegas Police Department. The next line stated "Date of Rape/Sex Assault: October 19-20, 2002."

The letter was addressed: "Dear Flatley, et. al., [sic] [¶] Please be advised that we represent a women [sic] with whom you engaged in forcible sexual assault on or about October 19-20, 2003 [sic: 2002]. Please consider this our first, and only, attempt to amicably resolve this claim against all Defendants named in the Complaint at Law enclosed herein."

On the second page, a large caption announced "NOTICE OF CLAIM & ATTORNEY'S LIEN" "Please consider this as Notice of our Attorneys' [sic] Liens. We hereby make a claim and lien in the amount of 40% of the Total Recovery of all funds obtained through trial or settlement, plus all costs of suit, and attorney fees leveled against you." After urging Flatley to contact his insurance carrier, the letter states "Tell them to contact me directly." It warns that Flatley's failure to do so will result in the filing of a lawsuit and that "all judgment proceeds" will be sought "directly from your personal assets." The letter then states: "You are granted until January 30, 2002, [sic: 2003] to resolve this matter. The amounts claimed in the lawsuit are naturally negotiable prior to suit." The letter warns, however, that if Flatley fails to meet the January 30 deadline "all offers to compromise, settle and amicably resolve this case will be automatically withdrawn." The letter then goes on to "advise[ ]" Flatley that Mauro has retained "several forensic expert witnesses" whose opinions "shall be disclosed in detail in the public filed court documents in this litigation." Mauro also advises Flatley that he has "worked at Lloyd's of London, and is familiar with International Law. These causes of action allow for PUNITIVE DAMAGES. Punitive damages are non-dischargeable in bankruptcy, and are recognized under British Law. We can therefore execute and collect any award against MICHAEL FLATLEY personally in the U.S., or the U.K." Next, Mauro refers to his expert "Economist Frank Maguire" who will testify "as to the amount of punitive damages which the law recognizes to justify `sending a message' or what constitutes a `deterrent.'"

The first paragraph of the third page of Mauro's letter refers Flatley to a "settlement of $100,000,000" awarded as punitive damages in an unidentified case. The second full paragraph then states that an investigation into Flatley's assets for purposes of determining an appropriate award of punitive damages, will require "an indepth investigation" and that any information would then "BECOME A MATTER OF...