Case No.

B 237804
IN THE COURT OF APPEAL STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN MIKE MALIN,
Plaintiff and Respondent,

vs. MARTIN D. SINGER, et al.,
Defendants and Appellants.

Appeal From the Superior Court of the State of California, County of Los Angeles; Hon. Mary M. Strobel, Judge, Dept. 32, Los Angeles Superior Court Case No. BC 466547 RESPONDENT'S BRIEF

Barry P. King, Esq. (SBN 53890) LAW OFFICES OF BARRY P. KING 9255 Sunset Boulevard, Suite 920 Los Angeles, California 90069 Tel: (310) 277-0420 Fax: (310) 277-0490 E-Mail: kinglaw@pacbell.net
Attorney for Plaintiff and Respondent, MIKE MALIN

Case No. B 237804
IN THE COURT OF APPEAL STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

MIKE MALIN,
Plaintiff and Respondent,

vs. MARTIN D. SINGER, et al.,
Defendants and Appellants.

Appeal From the Superior Court of the State of California, County of Los Angeles; Hon. Mary M. Strobel, Judge, Dept. 32, Los Angeles Superior Court Case No. BC 466547

RESPONDENT'S BRIEF

Barry P. King, Esq. (SBN 53890) LAW OFFICES OF BARRY P. KING 9255 Sunset Boulevard, Suite 920 Los Angeles, California 90069 Tel: (310) 277-0420 Fax: (310) 277-0490 E-Mail: kinglaw@pacbell.net
Attorney for Plaintiff and Respondent, MIKE MALIN

TO BE FILED IN THE COURT OF APPEAL
COURT OF APPEAL,

APP-008
Court of Appeal Case,Number:

SECOND

APPELLATE DISTRICT, DIVISION

SEVEN

B 237804
Superior Court Case Number:

ATTORNEY OR PARTY VVITHOUT ATTORNEY (Name, State Bar number, and address):

Barry P. King, Esq. (State Bar No. 53890) LAW OFFICES OF BARRY P. KING 9255 Sunset Boulevard, Suite 920 Los Angeles, California 90069

BC 466547
FOR COURT USE ONLY

(310) 277-0420 FAX NO. (Optional): (310) 277-0490 E-MAIL ADDRESS (Optional): kinglaw@pacbell.net ATTORNEY FOR (Name): Plaintiff and Respondent, MIKE MALIN
TELEPHONE NO.:

APPELLANT/PETITIONER:

MARTIN D. SINGER, et al. MALIN

RESPONDENT/REAL PARTY IN INTEREST: MIKE

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS
(Check one): I  I INITIAL CERTIFICATE

I

I SUPPLEMENTAL CERTIFICATE

Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial certificate in an appeal when you file your brief or a prebriefing motion, application, or opposition to such a motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may also use this form as a supplemental certificate when you learn of changed or additional information that must be disclosed.
1. This form is being submitted on behalf of the following party (name):

MIKE MALIN

2. a. IS There are no interested entities or persons that must be listed in this certificate under rule 8.208. b. I I Interested entities or persons required to be listed under rule 8.208 are as follows: Full name of interested entity or person Nature of interest (Explain):

Continued on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2).

Date:

December 7, 2012 BARRY P. KING
(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY) Page 1 of 1

Form Approved for Optional Use Judicial Council of California APP-008 [Rev. January 1, 2009]

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Cal. Rules of Court, rules 8.208, 8.488
www.courtinfo.ca.gov

TABLE OF CONTENTS

Page INTRODUCTION STATEMENT OF FACTS A. B. Factual Background Procedural Background 1 8 8 9 13 13 18

LEGAL DISCUSSION I. II. INTRODUCTION STANDARD OF REVIEW APPELLANTS' CONDUCT IS NOT PROTECTED UNDER THE ANTI-SLAPP PROVISIONS OF CODE OF CIVIL PROCEDURE §425.16 IV. APPELLANTS' ILLEGAL CONDUCT IS NOT PROTECTED BY THE LITIGATION PRIVILEGE COMPUTER HACKING AND EAVESDROPPING ARE NOT LEGAL METHODS OF INVESTIGATION, AND DO NOT CONSTITUTE "PROTECTED ACTIVITY" SUBJECT TO A MOTION TO DISMISS UNDER CODE OF CIVIL PROCEDURE §425.16 SINCE RESPONDENT'S CAUSES OF ACTION FOR INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS STEM FROM THE EXTORTION AND CIVIL RIGHTS CAUSES OF ACTION, THE TRIAL COURT'S DENIAL OF APPELLANTS' ANTI-SLAPP MOTION WAS PROPER AS TO THOSE CAUSES OF ACTION CONCLUSION

19

30

V.

35

VI.

45 46

VII.

TABLE OF AUTHORITIES

Page CASES Federal Daniels v. U.S. (9th Cir. 1928) 17 F.2d 339 Eastern R. Conf v. Noerr Motors (1961) 365 U.S. 127 Jacobellis v. Ohio (1964) 378 U.S. 184 R.A. V. v. City of St. Paul (1992) 505 U.S. 377 United Mine Workers v. Pennington (1965) 381 U.S. 657 United States v. Quinn (5th Cir. 1975) 514 F.2d 1250

5, 14

37

15

25

37 25

State Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Ca1.4th 1232 Barton v. State Bar (1935) 2 Ca1.2d 294 City of Cotati v. Cashman (2002) 29 Cal.4th 69 Cohen v. Brown (2009) 173 Cal.App.4th 302

16, 34

25

20

27

ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993 Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873 Episcopal Church Cases (2009) 45 Ca1.4th 467 Equilion Enterprises v. Consumer Cause, Inc. (2002) 29 Ca1.4th 53 Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467 Flatley v. Mauro (2006) 39 Ca1.4th 299 Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600 Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435

19-21

16

20

18, 20

16

2, 5, 6, 12, 15, 17, 22-27, 29, 30, 42, 45

35, 36

2, 12, 15, 17-19, 21, 27, 35, 38, 40, 42, 44, 45 Hansen v. Department of Corrections & Rehabilitation ' (2008) 171 Cal.App.4th 1537 36 HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204 Jarrow Formulas, Inc. v. LaMarche (2003) 31 Ca1.4th 728 Kashian v. Harriman (2002) 98 Cal.App.4th 892 Lefebvre v. Lefebrve (2011) 199 Cal.App.4th 696 Librarian v. State Bar (1952) 38 Ca1.2d 328

21

15, 21

45

6, 15, 17, 27, 35, 41, 42, 45

24, 25

Linder v. Thrifty Oil Co. (2000) 23 Ca1.4th 429 Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90 Martinez v. Metabolite Internat., Inc. (2003) 113 Cal.App.4th 181 Matson v. Dvorak (1995) 40 Cal.App.4th 539 Navellier v. Sletten (2002) 29 Ca1.4th 82 Nazir v. United Airlines, Inc. (2009) 178 CA4th 243 Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140 Novartis Vaccines & Diagnostics, Inc. v. Stop Huntington Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284 Paiva v. Nichols (2008) 168 Cal.App.4th 1007 People v. Fox (1958) 157 Cal.App.2d 426 Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158 Rothman v. Jackson (1996) 49 Ca1.App.4th 1134 Rubin v. Green (1993) 4 Ca1.4th 1187 San Diego Watercrafis, Inc. v. Wells Fargo Bank, N.A. (2002) 102 CA4th 308 -iv-

21

21

20

21

21

11

32-34

6, 15, 26

18

5, 14

14

34

32

11, 44

Silberg v. Anderson (1990) 50 Ca1.3d 205 Summit Bank v. Rogers (2012) 206 Cal.App.4th 669 Taus v. Loftus (2007) 40 Ca1.4th 683 Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049 United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617 Wallace v. McCubbin (2011) 196 Cal.App.4th 1169 Wilbanks v. Wolk (2004) 121 Cal.App.4th 883 Wilcox v. Superior Court (1994) 27 Cal.App.4th 809 Wilson v. Parker, Covert & Chidester (2002) 28 Ca1.4th 811

30-33

28, 29

19

37, 38

18

20

19

7, 19

21

Out of State Cases State v. Herrington (1969) 128 Vt. 242 [260 A.2d 692]

25

STATUTES Federal 18 U.S.C. §2510 42 U.S.C. §1983 10, 22 37

State Civil Code §47 Civil Code §47(b) Civil Code §52.1 Code of Civil Procedure Code of Civil Procedure Code of Civil Procedure Code of Civil Procedure Code of Civil Procedure Code of Civil Procedure Evidence Code §1152 Financial Code §1327 Penal Code §502(c)(1) Penal Code §502(c)(2) Penal Code §518 Penal Code §519 Penal Code §519(1) Penal Code §519(2) Penal Code §519(3) Penal Code §519(4) Penal Code §523 Penal Code §524 §425.16 §425.16(b)(1) §425.16(b)(2) §425.16(g) §437c §437c(b) 17, 41 15, 30, 33 41 passim 19, 42 20 44 7 44 4 28 10, 22 10, 22 23, 25, 29 2, 9, 22, 24-27 14 5, 14, 26 5, 14, 26 5, 14 24 25

RULES Cal. Rules of Prof. Conduct, Rule 5-100(A) 24

Case No. B 237804
IN THE COURT OF APPEAL STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION SEVEN

MIKE MALIN,
Plaintiff and Respondent,

vs. MARTIN D. SINGER, et al.,
Defendants and Appellants.

Appeal From the Superior Court of the State of California, County of Los Angeles; Hon. Mary M. Strobel, Judge, Dept. 32, Los Angeles Superior Court Case No. BC 466547

RESPONDENT'S BRIEF

INTRODUCTION This appeal arises from the trial court's denial of the Appellant's motion to dismiss the Respondent's complaint in this proceeding pursuant to the so-called anti-SLAPP statute (Code of Civil Procedure §425.16.) It does not arise from an appeal or writ proceeding arising out of a summary judgment motion, nor from the denial of a demurrer. This important distinction is consistently overlooked by the Appellants in their Opening Briefs in a meritless attempt to blur the standard of review in this proceeding.

The basis for the instant lawsuit are two paragraphs (three sentences) in a two-page "demand" letter over a business dispute, along with a photograph that was attached to that letter. At the time the letter was hand-delivered to the Respondent's office, evidence also arose of apparent hacking of Respondent's e-mail, as well as possible eavesdropping of his cell phone. The Respondent contends, and the trial court agreed, that the statements made in those sentences, along with the affixed photograph, constituted an attempt to criminally extort a settlement from the Respondent under Penal Code §519, et seq. as a matter of law. As a result, our Supreme Court's unambiguous holding in Flatley v. Mauro (2006) 39 Ca1.4th 299 ("Flatley") controls, and even if the litigation privilege might ultimately be found to immunize the Appellants from civil liability for their criminal acts, it does not create a safe harbor for the Appellants in the context of an antiSLAPP determination, and all of the Appellants' arguments to the contrary must fail. Similarly, Respondent's claims regarding computer hacking and eavesdropping, as criminal acts in and of themselves, are not constitutionally-protected activities. Even if these acts occurred in the course of a "pre-litigation" investigation and might therefore be subject to the litigation privilege in another context, they are not properly the subject of an anti-SLAPP motion. (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 446-447 ["Gerbosi"] [causes of action alleging that defendants engaged in wiretapping activity do not fall within the protective ambit of the anti-SLAPP statute].) None of the cases cited by the Appellants in their opening briefs contradict the Gerbosi court's conclusion on this issue. The facts that give rise to this matter are clear and undisputed. On July 25, 2011, Appellants sent a hand-delivered "demand" letter to

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Respondent in the course of a business dispute that made inter alia a threat to "expose" various alleged sexual partners of the Respondent if he did not "settle" with the Appellants in a manner satisfactory to them. Specifically: "Because Mr. Moore [a partner of the Respondent] has also received a copy of the enclosed lawsuit, I have deliberately left blank spaces in portions of the Complaint dealing with your using company resources to arrange sexual liaisons with older men such as " [a retired Superior Court Judge] a/k/a/ "Dad" (see enclosed photo), and many others. When the Complaint is filed in the Los Angeles Superior Court, there will be no blanks in the pleading.
.

"My client will file the Complaint against you and your other joint conspirators unless this matter is resolved to my client's satisfaction within five (5) days from your receipt of this Complaint." (A.A. 3:448-449; emphasis added.) More-or-less concurrently with the delivery of the "demand letter," it was discovered that the Respondent's e-mails were being read, and that his telephone conversations were apparently being eavesdropped. As a result, the instant lawsuit was filed, with causes of action for civil extortion, invasion of privacy, and intentional and negligent infliction of emotional distress. The Appellants devote an exorbitant amount of time and space to the "background" of the relationship between the parties and the related lawsuit that they filed against the Respondent, his business partner and various other entities, against whom they assert a myriad of sins. However, it is respectfully submitted that in the procedural position in which this matter comes before this Court, everything other than the two issues set forth above are little more than a sideshow — an attempt to downplay and/or redirect this Court's attention away from the conduct that

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is actually being complained about. That is understandable, given the nature of the conduct. For the reasons discussed below, Respondent respectfully submits that the fact that the Appellants went on to file their lawsuit against the Respondent and his partner is irrelevant. The fact that the Respondent may have initially made an offer to settle before filing the instant lawsuit is also irrelevant (besides being patently inadmissible under Evidence Code §1152). The fact that the offending statements may constitute a relatively small part of the "demand" letter (which they do not) is, likewise, irrelevant. The Appellants' additional claim that the Respondent's sexual orientation is "well-known" is also irrelevant, and completely ignores the fact that Appellants' threat to "expose" the private sexual activities of others who had no relationship whatsoever with either the Appellants or the business dispute that formed the basis for the offending communication might understandably work to compel the party being threatened to attempt to settle the underlying dispute to "[Appellants'] satisfaction" in order to try to protect the privacy of those innocent third parties, irrespective of whether his own sexual orientation was "well-known" or not. Finally, the fact that the same trial court that denied the Appellant's anti-SLAPP motion also denied a demurrer and motion to strike in the related case vis-a-vis Appellant Arazm's inclusion of claims that the Respondent had utilized "company resources" to engage in sexual activities (RJN, Ex. L, pp. 6-7) is irrelevant, because the standards relating to a determination of issues on a demurrer and motion to strike are substantively different from that utilized in determining a §425.16 motion to dismiss. As such, the Appellants' contention that the trial court's determinations in the related matter are somehow "relevant" to the issues raised in this appeal are really nothing more than attempts at misdirection.

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This appeal arises in the context of an anti-SLAPP motion. As a result, the fundamental issue before this Court is the question of whether the offending paragraph and affixed photograph that is the primary focus of Respondent's lawsuit "crossed the line" between constitutionally protected activity and unprotected activity. If it did, as the trial court correctly ruled, then under the Supreme Court's holding in Flatley, there was no need to proceed to the "second prong" of an anti-SLAPP analysis, and the Appellants' continuing attempts to argue that the "quasi-summary judgment" analysis involved in the second prong of an anti-SLAPP motion must be utilized, or that the trial court somehow erred in refusing to conduct that analysis are wholly without merit. No matter how the Appellants may attempt to downplay the paragraphs at issue and the other threats set forth in their July 25, 2011 letter, the offending statements contained therein along with the enclosed photograph constituted an overt threat by the Appellants to either: "accuse the individual threatened ... of any crime; or, ... [t]o expose, or impute to him ... any deformity, disgrace or crime; or ... Itlo expose any secret affecting him or them" for purposes of obtaining money. (Pen.Code §519(2), (3) and (4).) It is the very definition of criminal extortion. (People v. Fox (1958) 157 Cal.App.2d 426, 428, 430; Daniels v. U.S. (9th Cir. 1928) 17 F.2d 339, 340 [extortion is the obtaining of anything by illegal compulsion].) The threat contained in the letter is wholly unrelated to the gravamen of the Appellants' lawsuit against the Plaintiff, which is a business dispute between members of an LLC as to allocation of profits. Instead, it is a threat to publicly expose a "secret" relating to both the Plaintiff and third parties who have no relationship with the Appellants, or the subject matter of the Appellants' lawsuit.

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The Appellants' response to this is almost exclusively to hide behind the litigation privilege. Their overarching argument reduces, in essence, to the contention that anything that an attorney puts into a "demand letter" constitutes "protected speech" under §425.16, no matter how egregious, or how unrelated the statement (threat) may be to the actual basis of the dispute. This is simply not an accurate statement of the law. As discussed below, while the litigation privilege is extremely broad, it is not all-encompassing, and has only a limited application within an anti-SLAPP motion. (Flatley v. Mauro, supra, 39 Ca1.4th at 323; Lefebvre v. Lefebrve (2011) 199 Cal.App.4th 696, 703 [The determination whether a [litigation] privilege established by statute immunizes a Appellant from civil liability for criminal activity is a wholly separate issue from the determination whether the Appellant's conduct in the first instance was an act in furtherance of his or her constitutional rights].) No one could reasonably be heard to argue, for instance, that an attorney can threaten physical harm to the target of a "demand letter" in order to obtain a settlement and subsequently claim this was "protected speech" within the meaning of §425.16. Similarly, neither the federal nor state constitutional rights of petition or free speech encompass a right to file a false criminal report (Lefebvre v. Lefebvre, supra), or commit vandalism in the course of a political protest (Novartis Vaccines & Diagnostics, Inc. v. Stop Huntington Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1289-1296). Flatley, which is controlling in this matter, holds precisely the same in the context of an attempt to extort a settlement in a pre-litigation "demand letter." The Opening Briefs filed by the Appellants attempt in essence to convert their anti-SLAPP motion into a motion for summary judgment, as they did in the papers that they filed with the trial court. This is an incorrect

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standard, and misconstrues both the nature of a motion brought under §425.16 and the analysis utilized to determine whether the motion has merit. There first has to be a determination that the activities complained of actually constituted "protected speech" within the meaning of the statute. Only if a finding to that effect is made does a court proceed to conduct the type of "quasi-summary judgment" evidentiary analysis that the Appellants continuously insist should have occurred. In addition, in many respects the evidentiary standards utilized in the second prong of an anti-SLAPP analysis are much closer to those utilized in a demurrer proceeding than those utilized in a summary judgment motion brought pursuant to Code of Civil Procedure §437c, because the plaintiff need only show in the second prong of the analysis that he has a reasonable possibility of prevailing if the case goes forward. 1/ It also needs to be noted that the Appellants retain a number of procedural options to attack this lawsuit in the event that this Court affirms the trial court's ruling on their anti-SLAPP motion, as it should. They retain the right to demur. They retain the right to bring a motion for summary judgment after the pleading phase has ended and discovery has been conducted. The instant matter on appeal is an early

1/ Indeed, the second prong of the analysis required under §425.16 cannot be conducted in the same manner as a summary judgment motion, because even though the parties are required to file evidentiary declarations, they are barred by the provisions of §425.16(g) from conducting discovery "until notice of entry of the order ruling on the motion," and the only weight that is to be given to the defendants' evidentiary declarations is whether they defeat the plaintiff's claims "as a matter of law." (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds in Equilon v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) In this matter, the initial notice of appeal was filed prior to the filing of the notice of entry, and thus no discovery whatsoever has been conducted in this case. -7-

preliminary motion. An anti-SLAPP motion does nothing to void or
otherwise prejudice a defendant's other means of attacking a pleading. The trial court's determined that the statements and photograph complained of that were contained in Mr. Singer's July 25, 2011 letter on behalf of the Appellants constituted an attempt to extort a settlement as a matter of law, and therefore did not constitute "protected speech" within the meaning of the anti-SLAPP statute. Likewise, it determined that under Gerbosi the cause of action for violation of civil rights was not subject to review in the context of an anti-SLAPP motion because it was predicated on criminal conduct (computer hacking and eavesdropping). It also concluded that Respondent's causes of action for emotional distress flowed from the alleged criminal activities, and as a result they were also not subject to an anti-SLAPP analysis (a determination that the Appellants essentially agree with in their Opening Brief, even if they disagree with the result; see Singer AOB, p. 23). Each of these rulings were undoubtedly correct, and should be affirmed on appeal.

STATEMENT OF FACTS
A. Factual Background On July 25, 2011, Appellant Martin Singer, a partner in the law firm of Appellant Lavely & Singer, sent a letter to the Respondent (hand-delivered) on behalf of his client, Appellant Shareen Arazam, a business associate of the Respondent, accompanied by a draft "Complaint" and an 8 1/2x11 photograph. The letter stated, in pertinent part: "Because Mr. Moore [Plaintiffs partner] has also received a copy of the enclosed lawsuit, I have deliberately left blank spaces in portions of the Complaint dealing with your using company resources to arrange sexual liaisons with older men such as " [a retired Superior Court Judge] a/k/a/ "Dad" (see enclosed photo), and
57

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many others. When the Complaint is filed in the Los Angeles Superior Court, there will be no blanks in the pleading.ai "My client will file the Complaint against you and your other joint conspirators unless this matter is resolved to my client's satisfaction within five (5) days from your receipt of this Complaint." (A.A. 3:448-449; emphasis added.) Simultaneously with the delivery of the letters to Malin and Moore, Respondent uncovered evidence that strongly indicated that his and his partner's e-mails were being hacked, and his cell phone were being eavesdropped. This lawsuit followed. B. Procedural Background The instant lawsuit was filed against the Appellants on August 1, 2011 (A.A. 1:1-33), and contains four causes of action: for civil extortion, violation of civil rights, and intentional and negligent infliction of emotional distress. The gravamen of the Respondent's claim is based on tort damages arising from the Appellants' illegal acts. In the First Cause of Action, Respondent alleges that in Mr. Singer's letter of July 25, 2011, the Appellants made a demand to expose various illegal acts and sexual liaisons that the Respondent was engaging in, and to expose the identities of the individuals whom the Respondent was having those liaisons and that this threat constitutes criminal extortion pursuant to Penal Code §519 as a

2/ When the Complaint against Respondent and his partner was actually filed (BC 466696) (RJN, Ex. A), the blanks relating to the identities of the third parties that had appeared in the draft complaint that accompanied the offending letter that Appellants had threatened to "fill in" had been removed, and the individuals identified in Singer's July 25, 2011 letter were ultimately not named. This, in and of itself, is an indicia that the Appellants knew, or should have known, that they had crossed a line with the extortionate threats contained in their July 25, 2011 letter. -9-

matter of law. In the second cause of action, Respondent alleges that the Appellants, aided and abetted by individuals unknown, hacked into Respondent's private e-mails in order to invade Respondent's privacy and gain access to private information, without permission, in violation of Penal Code §502(c)(1) and (2) and have also eavesdropped and/or wiretapped Respondent's phones in violation of 18 U.S.C. §2510, et seq., all in violation of Respondent's rights of privacy under the California Constitution and federal law. Respondent's third and fourth causes of action are based upon the emotional distress caused by the illegal activities described in the first and second causes of action. On September 23, 2011, Appellants filed a special motion to dismiss Respondent's complaint as a meritless SLAPP lawsuit. (A.A. 1:3435.) The Motion was accompanied by a Memorandum of Points and Authorities (A.A. 1:36-53) and supporting Declaration of Martin Singer. (A.A. 1:54-135.) Interestingly, notwithstanding the controlling authority of the Flatley v. Mauro decision with respect to the Respondent's civil extortion claim, Appellants' initial Memorandum of Points and Authorities in support of their motion did not even mention the Flatley case, and made no attempt to address the case or its conclusions at all. (See A.A. 1:38.) Respondent's opposition to the Appellants' anti-SLAPP motion was filed October 21, 2011 (A.A. 1:136-175), along with supporting declarations from the Respondent (A.A. 1:156-158), his partner, Lonnie Moore (A.A.1:159-160), and Rick Sesman, an IT expert. (A.A. 161-162.) A separate declaration from James MacDonald, one of Respondents' employees, was also filed. (A.A. 1:172-175.) Appellants' reply brief was filed October 27, 2012 (A.A. 1:176-189), along with evidentiary objections to the Malin, Moore, MacDonald and Sesman declarations (A.A. 2:237-261). A supplemental

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declaration was submitted from Martin Singer (A.A. 1:190-213) that acknowledged his knowledge of the Flatley case and explained that its omission from the initial moving papers was due to its purported lack of "relevance." In addition, Appellants submitted "new" declarations from Appellants Andrew Brettler (A.A. 1:217-218), Oren Koules (A.A. 2:219223), and Shereene Arazm (A.A. 2;224-236), as well as a declaration from third party Paul Barresi (A.A. 1:214-216). 3/ These "new" declarations raised new factual and legal issues that had not been raised by the Appellants' in their initial moving papers. On November 1, 2011, Respondent filed an application to file an unredacted copy of the Singer August 25, 2011 letter under seal. (A.A. 3:433-451.) Appellants responded on November 2, 2011. (A.A. 2:288302.) On November 2, 2011, Respondent filed a reply to Appellants' evidentiary objections (A.A. 2:310-348), along with a declaration from Barry P. King (A.A. 2:303-309), and supplemental declarations from Respondent Malin and Rick Sesman. (A.A. 2:369-383.)

3/ Although it is now, unfortunately, common practice to "blindside" opposing parties by withholding "new" evidence until the other side has already responded, and Respondent acknowledges that he did not object to the presentation of these declarations, and instead attempted to offer supplemental declarations that the trial court refused to consider (R.T. 4:814). Nonetheless, Respondent respectfully submits that, due to the drastic and summary nature of a §425.16 motion, a rule needs to be enunciated that a party making a motion under §425.16 should be not be allowed to present"new" facts in support of its motion in its responsive papers, as is the case with summary judgment motions, due to the fact that the presentation of new matters without providing the party opposing such a motion an opportunity to respond raises substantive due process considerations. (Nazir v. United Airlines, Inc. (2009) 178 CA4th 243, 249; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 CA4th 308, 312-313, 316.)

On November 29, 2011, the hearing on Appellants' special motion to dismiss was heard, the Hon. Mary M. Strobel, Judge, presiding. (R.T. 1-25; A.A. 386-389.) At that time, Respondent's motion to file the offending letter and photograph under seal was granted, the Appellants' evidentiary objections to the Malin, Moore and Sesman Declarations were sustained in part and overruled in part, and the motion to dismiss was denied pursuant to Flatley v. Mauro (2006) 39 Cal.4th 299 and Gerbosi v. Gaims, Weil, West & Epstein (2011) 193 Cal.App.4th 435. In its ruling, the Court made the following findings: (a) The allegations of sexual misconduct contained

in the demand letter in this matter are tangential to the causes of action in the Respondent's complaint, which have to do with a business dispute and alleged misuse of company resources. (b) The letter is best read as extortion as a matter of

law. It threatens to reveal the names of sexual partners, including a retired superior court judge, and enclosing a photo. This is well beyond a typical demand letter saying that a party is going to file a complaint if some sort of settlement or accommodation is not reached. Rather, it accuses or imputes to the Plaintiff some disgrace or crime or threatens to expose a secret affecting him for purposes of obtaining money. (c) On the cause of action alleging wiretapping and

computer hacking, although the Court understands that Defendants claim that they did not engage in such practices, under the Gerbosi case, such activity constitutes illegal activity as a matter of law, and does not constitute protected activity under Code of Civil Procedure §425.16.

As a result, the trial court concluded that "[b]ecause the letter and the illegal activity alleged in Plaintiff's second cause of action are illegal as a matter of law, there is no need to reach the second prong of the analysis under the anti-SLAPP statute. (A.A. 2:414-417.) It also held that because the Respondent's emotional distress claims arose from the claims asserted in the first and second causes of action, and were thus not subject to an anti-SLAPP analysis. This appeal followed.

LEGAL DISCUSSION

I. INTRODUCTION This lawsuit arose out of a purported "demand" letter sent by Appellant Singer, a well-known attorney and partner in the Appellant law firm of Lavely & Singer, to the Respondent. The letter sought to extort a settlement favorable to Singer's client by threatening to "expose" the identity of various individuals who were not connected in any way with the dispute between Singer's client (Arazm) and the Respondent, including, inter alia, a retired Superior Court judge that the Appellants alleged Respondent was having homosexual liaisons with and was utilizing unspecified "company resources" to assist and in connection with these liaisons. The letter went on to state that if the dispute was not "resolved to my client's satisfaction within five days," the lawsuit that would be filed would name those third-party individuals, in an obvious attempt to embarrass both the Plaintiff and these other individuals, and force Plaintiff to settle the business dispute in a manner favorable to his client (Arazm).

In their Opening Briefs, as had been the case in the papers the Appellants filed in the trial court, this "communication" is portrayed as the same as the no-doubt thousands of other pre-litigation settlement demands sent out by attorneys in this state every day. This contention is utterly disingenuous. Any unbiased review of the letter at issue clearly shows that, even if it was masked as a "pre-litigation demand letter," it contained, at the very least, an extortion demand that threatened to not only embarrass the Respondent and force him to "settle" with the Appellants on whatever terms they deemed "reasonable," but also to expose and embarrass various innocent third parties who had no connection whatsoever to the dispute between Arams and the Respondent. 41 No matter how the Appellants attempt to gloss this paragraph and the other threats set forth in the July 25, 2011 letter, they clearly constituted an overt threat by the Defendants to either: "accuse the individual threatened ... of any crime; or, ... Rio expose, or impute to him ... any deformity, disgrace or crime; or .. . No expose any secret affecting him or them" for purposes of obtaining money. (Pen.Code §519(2), (3) and (4).) This is the very definition of criminal extortion.
(People v. Fox (1958) 157 Cal.App.2d 426, 428, 430; Daniels v. U.S. (9th

4/ Appellants contend for the first time in Singer's Opening Brief that because the Complaint only explicitly references Penal Code §519(2), (3) and (4), their threats in the letter to expose or embarrass these third parties cannot constitute "extortion" within the ambit of Respondent's complaint, apparently because the words "third person" only appear within subdivision (1) of §519. (Singer AOB, pp. 35-36, fn. 8.) Respondent respectfully submits that this is an overly-narrow reading of §519(4), which makes a threat to "expose any secret affecting him or them," which presumably includes the "third persons" mentioned in §519(a), as extortion. In any event, this issue was never raised before the trial court, and should be considered waived as a result. (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 167.) -14-

Cir. 1928) 17 F.2d 339, 340 [extortion is the obtaining of anything by illegal compulsion].) Criminal conduct, which Singer's extortionate threat in his July 25, 2011 letter clearly is, does not fall within "protected activity" as defined by the anti-SLAPP statute. (Flatley v. Mauro (2006) 39 Cal.4th 299; Novartis Vaccines & Diagnostics, Inc. v. Stop Huntington Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, 1289-1296 [a plaintiff's claims for damages allegedly caused by criminal vandalism does not implicate the anti-SLAPP statute even where it is shown that the defendant's act could be deemed related to protesting activity]; Lefebvre v. Lefebrve (2011) 199 Cal.App.4th 696, 703 [filing a false criminal report does not constitute "constitutionally protected activity" within the meaning of the anti-SLAPP statute].) Similarly, the cases cited by Appellants in their Opening Briefs do not support their implicit proposition that a lawyer may employ the anti-SLAPP statute to strike a complaint or cause of action merely because he or she is an attorney. The rule is to the contrary. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Ca1.4th 728, 741 (Jarrow Formulas) [not all attorney conduct related to litigation or representation of a client is protected under the anti-SLAPP statute].) (Gerbosi v. Gaims, Weil, West & Epstein (2011) 193 Cal.App.4th 435, 444-445.) Moreover, even if there was a need to conduct an analysis under the second prong of the anti-SLAPP analysis (which there was not) 1, the Appellants' argument that their conduct was subject to a "blanket" protection afforded by the litigation privilege (Civ.Code §47(b)) is without merit. A pre-litigation communication, or any portion thereof, is privileged

5/ Indeed, the question of whether the statements and photograph at issue in the July 25, 2011 letter are extortionate brings to mind Justice Potter Stewart's famous statement in his concurrence in Jacobellis v. Ohio (1964) 378 U.S. 184 that "I know it when I see it . . ." -15-

only if it "relates to litigation that is contemplated in good faith and under serious consideration." (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Ca1.4th 1232, 1251.) 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 pre-litigation communication relates to litigation that is contemplated in good faith and under serious consideration is an issue of fact." (Ibid.; accord, Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1487.) (Digerati Holdings, LLC v. Young Money Entertainment, LLC (2011) 194 Cal.App.4th 873, 887.) The litigation privilege is an important protection afforded by the Legislature to allow equal access to the courts, and Respondent agrees that the privilege extends to so-called "pre-litigation demand letters." However, Appellants contend on appeal that this is a "blanket" protection, that extends to the entirety of a demand letter, no matter how egregious (or illegal) specific statements contained therein might be. Respectfully, this is not the case. For purposes of argument, even if the remainder of Singer's July 25, 2011 letter could be read to fall within the confines of the litigation privilege, the portion that contained the extortionate threats to expose alleged sexual encounters between the Respondent and various third party individuals who had no connection to the business dispute between Respondent and his partner and Arazm if the Respondent did not settle on "acceptable" terms had no "connection or logical relation" to the underlying purpose of the litigation, and were not made "to achieve the objects" of the litigation (other than to attempt to force the Respondent to settle by threat), and are therefore not covered by the litigation privilege, at least in the context of an anti-SLAPP motion.

Indeed, throughout their Opening Brief, Appellants consistently fail to acknowledge the limited role that the litigation privilege has in the context of a §425.16 motion to dismiss. "The fact that Civil Code section 47 may limit the liability of a party that sends to an opposing party a letter proposing settlement of proposed litigation does not mean that the settlement letter is also a protected communication for purposes of section 425.16." (Flatley v. Mauro, supra, 39 Cal.4th at 324-325; accord, Lefebrve v. Lefebvre, supra, 199 Cal.App.4th at 704-705.) The litigation privilege is inapplicable to the portion of Singer's July 25, 2011 letter at issue in the context of an anti-SLAPP motion, and the trial court properly denied the Appellants' motion pursuant to the controlling authority set forth in Flatley v. Mauro. The Appellants also completely misconstrue the trial court's reliance on Gerbosi v. Gaims, Weil, West & Epstein (2011) 193 Cal.App.4th 435 in denying their motion to dismiss the Respondent's second cause of action for violations of Respondent's civil rights. Gerbosi stands for the proposition that a cause of action that alleges wiretapping is not subject to anti-SLAPP protection in the first instance, because wiretapping is illegal, and in connection with an anti-SLAPP motion it is therefore irrelevant whether the act(s) complained of took place in the context of a litigationrelated investigation, or whether the defendants' claims that they did not engage in such conduct ultimately are proved to be true. (193 Cal.App.4th at 444-445.) None of the cases cited by the Appellants contradict this conclusion. The trial court's denial of Appellants' anti-SLAPP motion was correct, and was based on undisputed facts and controlling legal authority. There was no error in that determination, and its decision should be affirmed on appeal.

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II. STANDARD OF REVIEW Appellate review of a trial court's ruling on an anti-SLAPP motion is de novo. (United States Fire Ins. Co. v. Sheppard, Mullin, Richter & Hampton LLP (2009) 171 Cal.App.4th 1617, 1625.) "Thus, [appellate] review is conducted in the same manner as the trial court in considering an anti-SLAPP motion." (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1016.) In the first step of an anti-SLAPP analysis, the court is tasked with determining whether the defendant has made a threshold showing that the challenged cause of action is one "arising from protected activity. In this step, the moving defendant must demonstrate that the acts upon which the plaintiffs claim is based were actually taken in furtherance of the defendant's right of petition or free speech under the federal or state Constitutions. If the court finds this threshold showing has been made, it must then determine whether the plaintiff has demonstrated a 'probability of prevailing' on his or her claim. (Equilion Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)" (Gerbosi, supra, 193 Cal.App.4th at p. 443.) Stated another way. if, and only if, the court determines that the acts complained of constituted "protected activities" as defined by §425.16(b)(1) does the court then undertake the second step of the anti-SLAPP analysis to determine whether the plaintiff can establish a

6/ "A cause of action 'arising from protected activity' means that the defendant's acts underpinning the plaintiffs cause of action involved an exercise of the right of petition or free speech. [Citation.] ... The defendant must establish that the plaintiffs cause of action is actually based on conduct in the exercise of those rights. [Citation.]" (Gerbosi, supra, 193 Cal.App.4th at p. 443.) -18-

"probability of prevailing" on the merits — which means that the burden shifts to the plaintiff to show that he or she has "a reasonable probability of prevailing, not prevailing by a preponderance of the evidence. For this reason, a court must apply what has been described as a 'summaryjudgment-like' test (Taus v. Loftus (2007) 40 Cal.4th 683, 714), accepting as true the evidence favorable to the plaintiff and evaluating the defendant's evidence only to determine whether the defendant has defeated the plaintiffs evidence as a matter of law. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 823, disapproved on other grounds in Equilon, supra, 29 Cal.4th at p. 68, fn. 5.) A court may not weigh credibility or compare the weight of the evidence. The court's single task is to determine whether the plaintiff has made a prima facie showing of facts supporting his or her cause of action. (ComputerXpress, Inc. v. Jackson [(2001) 93 Cal.App.4th 993,] 1010.)" (Gerbosi, supra, 193 Cal.App.4th at p. 444.) However, "[a] motion to strike under section 425.16 is not a substitute for a motion for a demurrer or summary judgment [citation]. In resisting such a motion, the plaintiff need not produce evidence that he or she can recover on every possible point urged. It is enough that the plaintiff demonstrates that the suit is viable, so that the court should deny the special motion to strike and allow the case to go forward." (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 905; emphasis added.)

III.
APPELLANTS' CONDUCT IS NOT PROTECTED UNDER THE ANTI-SLAPP PROVISIONS OF CODE OF CIVIL PROCEDURE §425.16 A cause of action is one "arising from" protected activity within the meaning of section 425.16, subdivision (b)(1) only if the

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Appellant's act on which the cause of action is based was an act in furtherance of the Appellant's constitutional right of petition or free speech in connection with a public issue. (City of Cotati v. Cashman (2002) 29 Ca1.4th 69, 78.) In deciding whether the "arising from" requirement is satisfied, "the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Code Civ.Proc. §425.16(b)(2).) Whether the "arising from" requirement is satisfied depends on the " 'gravamen or principal thrust' " of the claim. (Episcopal Church Cases (2009) 45 Ca1.4th 467, 477, quoting Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 193.) A cause of action does not arise from protected activity for purposes of the anti SLAPP statute if the protected activity is merely

incidental to the cause of action. (Martinez, supra, 113 Cal.App.4th at p.
188.) A defendant does not establish that a cause of action "arises from" an act in furtherance of the right of petition or free speech merely by showing that the Respondent filed his or her lawsuit in retaliation for the Appellant's petitioning or speech activities. The defendant must establish that the plaintiff's cause of action is actually based on conduct in exercise of those rights. (See, e.g., ComputerXpress, Inc. v. Jackson (2001)93 Cal.App.4th 993, 1002.) Even in circumstances where a defendant has met his or her burden on the first prong of the analysis, and shown that a substantial part of a cause of action constitutes speech or petitioning activity protected by the anti-SLAPP statute, thereby requiring the plaintiff to show a probability of prevailing on the cause of action to avoid dismissal, the plaintiff need only show a probability of prevailing on any part of its claim. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Ca1.4th at 67; Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1181.) A court may not weigh

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credibility or compare the weight of the evidence. The court's single task is to determine whether the plaintiff has made a prima facie showing of facts supporting his or her cause of action. (Computer XPress, Inc. v. Jackson, supra, 93 Cal.App.4th at 1010; Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.) Once the plaintiff has made this showing, the court need not determine whether the plaintiff can substantiate all theories presented within the single cause of action. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 100.) To establish a probability of prevailing, the Respondent "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the Respondent is credited." (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.) For purposes of this inquiry, "the trial court considers the pleadings and evidentiary submissions of both the Respondent and the Appellant (§425.16, subd. (b)(2)); though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the Appellant's evidence supporting the motion defeats the Respondent's attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Ca1.4th 811, 821.) In making this assessment it is "the court's responsibility . . . to accept as true the evidence favorable to the Respondent . . ." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) The Respondent need only establish that his or her claim has "minimal merit" (Navellier v. Sletten (2002) 29 Ca1.4th 82, 89) to avoid being stricken as a SLAPP. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Ca1.4th 728, 738 ["the anti-SLAPP statute requires only 'a minimum level of legal sufficiency and triability' [citation]."], quoting Linder v. Thrifty Oil Co. (2000) 23 Ca1.4th 429, 438, fn. 5.)

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The instant lawsuit contains four causes of action: for civil extortion, violation of civil rights, and intentional and negligent infliction of emotional distress. The "gravamen" of the Respondent's claim is based on tort damages arising from the Appellants' illegal acts. In the First Cause of Action, Respondent alleges that in Mr. Singer's letter of July 25, 2011, the Appellants threatened to "expose" various illegal acts and sexual liaisons that the Respondent was engaging in, and to expose the identities of the individuals whom the Respondent was having those liaisons and that this threat constitutes extortion pursuant to Penal Code §519 as a matter of law. In the second cause of action, Respondent alleges that the Appellants, aided and abetted by individuals unknown, hacked into Respondent's private emails in order to invade Respondent's privacy and gain access to private information, without permission, in violation of Penal Code §502(c)(1) and (2), and have also eavesdropped and/or wiretapped Respondent's phones in violation of 18 U.S.C. §2510, et seq., in violation of Respondent's rights of privacy under the California Constitution. Respondent's third and fourth causes of action are based upon the emotional distress caused by the illegal activities described in the first and second causes of action. 2/ In Flatley v. Mauro (2006) 39 Ca1.4th 299 (Flatley), the case that Respondent respectfully submits controls in this matter, the Supreme Court held that "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." (39 Ca1.4th at 305.) 7/ Respondent also met the requirement set forth in Soukup v. Law Offices of Herbert Hafif (2006) 39 Ca1.4th 260, 287 that where allegations of illegal activity are involved, a plaintiff must provide notice to the defendants and the trial court about the particular statute or statutes the defendants are alleged to have violated as a matter of law. -22-

As the circumstances of the instant matter are effectively identical to those in Flatley, the trial court was correct to deny the Appellants' anti-SLAPP motion as to Respondent's extortion claim. In Flatley, a celebrity dancer received a "demand letter" from an attorney for a woman who claimed that the celebrity had "raped" her in a hotel room in Las Vegas, and demanded "$100,000,000 " to settle the matter, and that if no settlement was reached by a non-extendable deadline, a lawsuit would be filed, and the matter would be disseminated to media worldwide. The demand letter also attached a draft of a proposed lawsuit against the celebrity. The celebrity filed a lawsuit against the attorney, his client, and various doe Appellants for civil extortion, defamation, fraud, intentional infliction of emotional distress, and wrongful interference with prospective economic advantage. In response, the Appellants filed a general denial and various affirmative defenses, including some based upon the anti-SLAPP statute, and subsequently filed an anti-SLAPP motion, arguing that the letter was a "pre-litigation settlement offer" and therefore the complaint arose from the Appellants' exercise of their 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, and affirmed the trial court's denial of the motion to strike. Upon review, the Supreme Court upheld the Court of Appeal's determination. "Extortion is the obtaining of property from another, with his consent . . . induced by a wrongful use of force or fear . . . ." (Pen. Code, § 518.) Fear, for purposes of extortion "may be induced by a threat, either: [J] . . . [¶] 2. To accuse the individual threatened . . . of any crime; or, MI 3. To expose, or impute to him . . . any deformity, disgrace or -23-

crime[.]" (Pen. Code, §519.) "Every person who, with intent to extort any money or other property from another, sends or delivers to any person any letter or other writing, whether subscribed or not, expressing or implying, or adapted to imply, any threat such as is specified in 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.) (Flatley, 39 Ca1.4th at 326.)

"Moreover, 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. [Citations omitted.] Furthermore, the crime with which the extortionist threatens his or her victim need not be a specific crime. [T]he accusations need only be such as to put the intended victim of the extortion in fear of being accused of some crime. The more vague and general the terms of the accusation the better it would subserve the purpose of the accuser in magnifying the fears of his victim, and the better also it would serve to protect him in the event of the failure to accomplish his extortion and of a prosecution for his attempted crime.' [Citations omitted.] "Attorneys are not exempt from these principles in their professional conduct. Indeed, the rules of professional conduct specifically prohibit attorneys from "threaten[ing] to present criminal, administration, or disciplinary charges to obtain an advantage in a civil dispute." (Cal. Rules of Prof. Conduct, rule 5-100(A).) "In Librarian v. State Bar (1952) 38 Cal.2d 328, we upheld disciplinary action against Librarian who, after losing at trial, sent a letter to opposing counsel, accusing his opponent's client of perjury and threatening to use the perjury charge as the basis of a new trial motion and a criminal complaint unless opposing counsel's client paid Librarian's client. 'Although no action was taken either by Librarian or -24-

Siegel to prosecute Nadel, the record clearly shows conduct which is in violation of Librarian's oath and duties as an attorney. The threats contained in the letter indicate an attempt to commit extortion. The sending of a threatening letter with intent to extort money is 'punishable in the same manner as if such money . . . were actually obtained' (Pen. Code, § 523) and the crime of extortion involves moral turpitude." (Id. at pp. 329-330; Barton v. State Bar (1935) 2 Cal.2d 294, 297 [The conduct of an attorney who threatened an oil company with reporting adulteration of its gasoline to the prosecutor unless it paid his clients was not only grounds for disbarment but 'constituted an attempt to extort money as said crime is defined in sections 518, 519 and 524 of the Penal Code']; State v. Herrington (1969) 128 Vt. 242 [260 A.2d 692, 699] [attorney's suggestion in letter demanding $175,000 settlement in divorce case that he might advise his client to report husband to Internal Revenue Service and United States Custom Service constituted "veiled threats [that] exceeded the limits of respondent's representation of his client in the divorce action" and supported attorney's extortion conviction].) As these cases illustrate, a threat that constitutes criminal extortion is not cleansed of its illegality merely because it is laundered by transmission through the offices of an attorney. . . ." (Id., 39 Cal.4th at 327-328.)

"Extortion is not a constitutionally protected form of speech. (R.A. V. v. City of St. Paul (1992) 505 U.S. 377, 420 [120 L.Ed.2d 305, 112 S.Ct. 2538] (conc. opn. of Stevens, J.) ["Although the First Amendment broadly protects 'speech,' it does not protect the right to . . . 'extort' "]; United States v. Quinn (5th Cir. 1975) 514 F.2d 1250, 1268 ["It may categorically be stated that extortionate speech has no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money, which is no protection at all"].) The purpose of the anti-SLAPP statute, of course, is to protect "the valid exercise of the constitutional rights of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) . ." (39 Ca1.4th at 329.)

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"Evaluating Mauro's conduct, we conclude that the letter and subsequent phone calls constitute criminal extortion as a matter of law. 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. That the threats were half-couched in legalese does not disguise their essential character as extortion. [Citations omitted]" (39 Cal.4th at 331; emphasis added.) Based upon this analysis and its analysis of the intent of the anti-SLAPP statute, the Supreme Court concluded "where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action. In reaching this conclusion, we emphasize that the question of whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the Respondent has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law — either through Appellant's concession or by uncontroverted and conclusive evidence — is not the same showing as the Respondent's second prong showing of probability of prevailing." (Flatley, supra, 39 Ca1.4th at 320.) Flatley is the controlling authority for all cases where an anti-SLAPP motion is brought in circumstances where illegal or allegedly illegal activity is involved, and has been cited on numerous occasions over the past five years. (Novartis Vaccines & Diagnostics, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2006) 143 Cal.App.4th 1284, -26-

1289-1296 [a Respondent's claims for damages allegedly caused by criminal vandalism does not implicate the anti-SLAPP statute even where it is shown that the Appellant's act could be deemed related to protesting activity]; Cohen v. Brown (2009) 173 Cal.App.4th 302, 318-319 [filing of a State Bar complaint against defendant to further the goal of obtaining an advantage in a fee dispute with Respondent was filed in an extortive context; litigation privilege inapplicable]; Gerbosi v. Gaims, Weil, West & Epstein (2011) 193 Cal.App.4th 435, 446 [section 425.16 was not enacted to protect an attorney who allegedly hired an "investigator" like Anthony' Pellicano to wiretap telephones so as to get an unfair advantage in a client's legal matters]; Lefevre v. Lefevre (2011) 199 Cal.App.4th 696, 703 [filing a false criminal complaint is an illegal activity, not a constitutionally protected exercise of the rights of petition or free speech; denial of antiSLAPP motion affirmed].) Flatley is essentially on all fours with the facts as alleged in this matter. Appellant Singer admits he wrote the letter in question, although Appellants generally attempt to minimize the importance of the offending paragraph. The letter clearly contains threats that meet the definitions of extortion set forth in Penal Code §519. Because the gravamen of Respondent's complaint involves illegal activity and the evidence for such activity (i.e., Singer's July 25, 2011 letter) speaks for itself, the offending activities complained of do not fall within the ambit of "protected speech," and the provisions of Code of Civil Procedure §425.16 are not available to the Appellants in this matterY 8/ With respect to Respondent's Second Cause of Action for violation of civil rights based upon hacking of e-mails and eavesdropping, the Appellants only claim that they "did not do it," or that they were not involved in any such activities. That is a question of fact for a trier of fact subject to discovery, which is barred during the course of an anti-SLAPP motion. Hacking e-mails and eavesdropping on cell-phone conversations is clearly not -27-

The Appellants' reliance on Summit Bank v. Rogers (2012) 206 Cal.App.4th 669 for the argument that "the 'illegal as a matter of law' exception cannot apply to 'criminalize' speech that is constitutionallyprotected" (Singer AOB, p. 27) is misplaced. In Summit, a bank sued a former employee who was allegedly posting "false and libelous" statements online about the bank, its operations, the integrity of its chief executive officer, the safety of depositors' funds and purportedly false statements about audits and regulatory actions. The employee brought an anti-SLAPP motion, which the bank opposed by arguing that the online postings were "illegal as a matter of law" due to the fact that they were prima facie violations of Financial Code §1327, a 1917 law that imposed criminal liability when an untrue "statement or rumor" is made that is "directly or by inference derogatory" to a bank's financial condition. The Court of Appeal held that the Flatley decision was not applicable, because the plaintiff's actions could not be deemed "illegal as a matter of law." This conclusion was based on the Summit Court's finding that "Financial Code section 1327 is an impermissible content-based restriction on speech protected by federal and state constitutional free speech guarantees" and thus unconsitutional on its face. As a result, the anti-SLAPP statute applied to the Bank's defamation action, and since the plaintiff's online postings constituted constitutionally-protected speech, the bank could not prevail on its defamation action. (Ibid.) This is clearly distinguishable from facts and circumstances in the case at bar. First, the "litigation privilege" is imposed by statute, and contrary to the Appellants' continuing assertions, is "not a constitutional

a protected activity, nor does it come within the ambit of the litigation privilege. (Gerbosi v. Gaims, Weil, West & Epstein, supra, 193 Cal.App.4th at 444, 446.)
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protection," and speech that may fall under the litigation privilege does not in and of itself rise to the level of "constitutionally-protected" speech in the sense that "rants and raves" posted on a public forum like Craigslist are. (Flatley v. Mauro, supra, 39 Ca1.4th at pp. 324-325; Summit Bank v. Rogers, supra, 206 Cal.App.4th at 699 ["Comments that are no more than `rhetorical hyperbole, "vigorous epithet[s], "lusty and imaginative expression[s] of... contempt, ' and language used 'in a loose, figurative sense' have all been accorded constitutional protection."].) Second, if the Summit decision were to be accorded any relevance to the instant matter, then the extortion statutes (Penal Code §518, et seq.), as well as the statutes criminalizing eavesdropping, wiretapping and computer hacking would all have to be found unconstitutional, as well. This point was raised by Division Eight of this Court in Lefebvre v. Lefebvre, supra, 199 Cal.App.4th at 703: "Because Alice's act of making a false police report was not an act in furtherance of her constitutional right of petition or free speech, the anti-SLAPP statute simply never comes into play in this case. Neither the federal nor the state constitutional right of petition or free speech encompasses a right to file a false criminal report. Indeed, if the right of petition or free speech encompassed a right to file a false criminal report, then laws criminalizing such reports would be inherently unconstitutional. The determination whether a privilege established by statute immunizes Alice from civil liability for making a false criminal report is a wholly separate issue from the determination whether her conduct in the first instance was an act in furtherance of her constitutional rights." (Italics in original; underlining added.) Singer and his law firm's authorship of the July 25, 2011 demand letter on behalf of and with the support and concurrence of the other Appellants herein is indisputable and has been admitted by the Appellants As a result, under Flatley, there was no need to reach the

second prong of the anti-SLAPP analysis. The trial court's denial of the Appellant's anti-SLAPP motion pursuant to the Supreme Court's holding in Flatley was correct in all respects, and should be upheld.

IV. APPELLANTS' ILLEGAL CONDUCT IS NOT PROTECTED BY THE LITIGATION PRIVILEGE Under Flatley and its progeny, once it is established that the acts that are claimed to be protected under the anti-SLAPP statute arise from illegal activities, the second prong of the analysis required under §425.16 is unnecessary, as the trial court noted in its ruling on the Appellants' anti-SLAPP motion. However, ever were such an analysis to be conducted, the litigation privilege provided by Civil Code §47(b) is not applicable to the instant proceedings, notwithstanding Appellants' claims to the contrary. As such, the trial court's denial of Appellants' anti-SLAPP motion was appropriate. In the leading case of Silberg v. Anderson (1990) 50 Ca1.3d 205 (Silberg), the court explained the rationale of the privilege codified as section 47, subdivision (2) — as follows: "The principal purpose of section 47(2) is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.] [J] Section 47(2) promotes the effectiveness of judicial proceedings by encouraging `open channels of communication and the presentation of evidence' in judicial proceedings. [Citation.] A further purpose of the privilege 'is to assure utmost freedom of communication between citizens and public authorities whose responsibility is to investigate and remedy wrongdoing.' [Citations.] Such open communication is 'a fundamental adjunct to the right of access to judicial and quasi-judicial proceedings.' [Citation.] Since the 'external threat of liability is destructive of this fundamental right and inconsistent with -30then

the effective administration of justice' [citation], courts have applied the privilege to eliminate the threat of liability for communications made during all kinds of truth-seeking proceedings: judicial, quasi-judicial, legislative and other official proceedings. [11] MO Section 47(2) further promotes the effectiveness of judicial proceedings by encouraging attorneys to zealously protect their clients' interests. 'Mt is desirable to create an absolute privilege ... not because we desire to protect the shady practitioner, but because we do not want the honest one to have to be concerned with [subsequent derivative] actions ....' [Citation.] [T] Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result. [Citations.] ... [J] For our justice system to function, it is necessary that litigants assume responsibility for the complete litigation of their cause during the proceedings. To allow a litigant to attack the integrity of evidence after the proceedings have concluded, except in the most narrowly circumscribed situations, such as extrinsic fraud, would impermissibly burden, if not inundate, our justice system. [Citations.] [J] Given the importance to our justice system of ensuring free access to the courts, promoting complete and truthful testimony, encouraging zealous advocacy, giving finality to judgments, and avoiding unending litigation, it is not surprising that section 47(2), the litigation privilege, has been referred to as 'the backbone to an effective and smoothly operating judicial system.' [Citation.]" (Id. at pp. 213-215.) The Silberg court also addressed the nature of the communications protected by the privilege: "The usual formulation is that the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some -31-

connection or logical relation to the action." (Silberg, supra, 50 Ca1.3d at p. 212.) Later in this opinion, however, the court effectively conflated the last two factors into one: "The requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action. A good example of an application of the principle is found in the cases holding that a statement made in a judicial proceeding is not privileged unless it has some reasonable relevancy to the subject matter of the action." (Id., 50 Ca1.3d at 219-220.) In Rubin v. Green (1993) 4 Ca1.4th 1187 (Rubin) the Supreme Court made clear that the "litigation privilege" applies to pre-litigation communications as well as those occurring during the course of actual litigation. However, the litigation privilege does not extend to everything that is written simply because a given statement is contained in a "pre-litigation demand letter." As noted above, in Silberg the two tenets regarding the relationship of the statements to the litigation are fused into one. The court's language, again, was that "the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action." A few lines later, it restated the requirement as being that the statement have some "reasonable relevancy to the subject matter of the action." (Silberg, supra, 50 Ca1.3d at p. 220.) In Nguyen v. Proton Technology Corp. (1999) 69 Cal.App.4th 140, a pre-litigation demand letter was sent by one company (Proton) to another (Excelsior), accusing the latter of unfair competition for raiding Proton's employees. In a portion of its demand letter, Proton accused Nguyen, a former Proton sales representative then working for Excelsior, of

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soliciting Proton's customers to switch their business to Excelsior. The letter went on to state: " 'We think you should be aware ...' " that Nguyen had been in prison " 'for repeatedly and violently assaulting his wife.' " (Id. at pp. 143-144.) (In fact, Nguyen had been in county jail for shooting at an unoccupied vehicle and vandalism.) Nguyen sued Proton for defamation and other related causes of action. The trial court granted Proton's motion for summary judgment on the ground Proton's statements were absolutely protected by the litigation privilege. Nguyen appealed, and the appellate court reversed. The court concluded Silberg had significantly limited what was becoming a fairly expansive view of the "logical relation" test, and thereby brought the test more into line with several earlier decisions. "We think these cases, and several others discussed earlier, establish an important point for both litigants and attorneys concerning pre-litigation demands and the like. That point is that section 47(b) does not prop the barn door wide open for any and every sort of pre-litigation charge or innuendo, especially concerning individuals." (Nguyen v. Proton Technology Corp., supra, 69 Cal.App.4th at p. 150; emphasis added.) Accordingly, the court said: "We have no difficulty in holding that the inclusion in [Proton's] demand letter to Excelsior of references to [Nguyen's] criminal record falls outside of the section 47(b) privilege." (Id. at p. 151.) This was so, it explained, partly because the information was incorrect in the first instances, but more importantly because any connection between Nguyen's criminal record and Excelsior's alleged acts of unfair competition was "to be charitable about it, tenuous." (Ibid.) The circumstances of the instant matter are similar in many respects to the circumstances of Nguyen and the cases discussed therein. Here, Appellant Singer sent a letter that contained a threat completely

unrelated to the gravamen of the Appellants' lawsuit against the Respondent, which is a business dispute between members of an LLC as to allocation of profits. Instead, Appellant Singer and his law firm, acting on behalf of the other Appellants, made a threat to publicly expose a "secret" relating to both the Respondent and third parties who have absolutely no relationship with the Appellants or the subject matter of the Appellants' lawsuit, including a retired judicial officer. Like Nguyen, the threat is unrelated to the "business dispute" that forms the core of the Appellants' lawsuit. As such, it is respectfully submitted that the extortionate communication that is at issue in this lawsuit bears no "logical connection or relation" to the business dispute between the parties, and the litigation privilege, even if applicable to the other portions of the letter, is not applicable to the portion of Singer's letter and the photograph that was attached thereto. (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41 Ca1.4th at 1251; see also Rothman v. Jackson (1996) 49 Cal.App.4th 1134,1147-1148.) Based on the foregoing, the litigation privilege is not applicable to the Appellants' actions that form the basis of this lawsuit. The trial court's ruling denying the Appellants' anti-SLAPP motion was correct, and should be affirmed on appeal.

V. COMPUTER HACKING AND EAVESDROPPING ARE NOT LEGAL METHODS OF INVESTIGATION, AND DO NOT CONSTITUTE "PROTECTED ACTIVITY" SUBJECT TO A MOTION TO DISMISS UNDER CODE OF CIVIL PROCEDURE §425.16 In their Opening Brief, the Appellants also argue that Respondent's second cause of action for violation of civil rights is also subject to the litigation privilege on the grounds that the alleged wiretapping and hacking of Respondent and his partner's e-mails constituted "protected activity" within the meaning of the anti-SLAPP statute because they were part of the Appellants' "prelitigation investigation," are covered by the litigation privilege, and thus the privilege may be asserted as a defense in the context of a §425.16 motion to dismiss. (Singer AOB, pp. 19-21.) As discussed above, while the litigation privilege is extremely broad, in the context of an anti-SLAPP motion it has limits, and one of those limits is illegal (criminal) activity. (Gerbosi v. Gaims, Weil, West & Epstein, LLP, supra, 193 Cal.App.4th at 446-447; Lefebvre v. Lefebvre, supra, 199 Cal.App.4th at 705-706.) None of the cases cited by the Appellants reach a contrary conclusion, because the investigative methods utilized in the cases cited did not involve illegal activities, contrary to the circumstances of the case at bar. In Gallanis-Politis v. Medina (2007) 152 Cal.App.4th 600, a retaliation claim against two county supervisors was dismissed under the anti-SLAPP statute because it was based upon "acts" that occurred as the result of an investigation and memorandum undertaken in response to

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counsel's inquiries to one of the defendants in the course of preparing responses to the plaintiffs discovery requests. (152 Cal.App.4th at 610612.) There is no indication that this investigation involved the use of any illegal "investigative" methods. In Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, 1542, a former Department of Corrections employee who had been accused during the course of his employment of various criminal acts, including sexual acts with inmates and unauthorized contacts with inmates. The Department of Corrections launched an investigation into the allegations. The employee retired, but the investigation continued after his retirement, and included the execution of a search warrant at his residence. No charges were ever filed against the employee, who subsequently filed a lawsuit against the Department of Corrections for retaliation for his allegedly having been a "whistle-blower." The employee/plaintiff alleged in his complaint that in the course of
Department of Corrections investigation, "certain CDCR employees who

were not satisfied with his retirement conspired to defame him and to cause him continuing damage. Hansen claimed that, as part of this civil conspiracy, these employees willfully and intentionally created an entire web of lies regarding Hansen including that he had illegally smuggled communications to inmates, had illegally smuggled firearms, deadly weapons or teargas into CCI, and had illegally engaged in sexual activity with inmates. Hansen asserted that, as a direct result of these statements, a CDCR representative swore out an affidavit and secured the warrant for the search of Hansen's person and residence." (171 Cal.App.4th at 1541.) The Department of Corrections brought an anti-SLAPP motion on the grounds that the former employee's complaint arose out of statements and writings made before official and judicial proceedings, it fell within the ambit of the

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anti-SLAPP statute and the litigation privilege. The trial court granted the motion, which was affirmed by the Court of Appeal. Again, although the plaintiff alleged that various Department of Corrections employees had "lied" over the course of the investigation, the investigation was (a) an official proceeding, and (b) no illegal activities by the Department of Corrections itself were alleged. Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1068-1071 does not assist the Appellants' assertion of the litigation privilege either. In that case, the Morgan Hill City Council adopted a resolution that condemned a local attorney for hiring a private investigator to conduct surveillance of the city manager and then denying that he had done so. Thereafter, Tichinin filed an action against the City under 42 United States Code section 1983 alleging that the City had unlawfully retaliated against him for exercising his constitutional rights. An antiSLAPP motion that presented the unusual issue of conflicting constitutional and statutory rights between the parties was brought by the defendant City of Morgan Hill, which alleged, inter alia, that the attorney's investigation was a "sham" and that the City was protected by the litigation privilege and the federal equivalent to §425.16, the so-called "Noerr-Pennington doctrine." (Eastern R. Conf v. Noerr Motors (1961) 365 U.S. 127 [5 L.Ed.2d 464, 81 S.Ct. 523]; United Mine Workers v. Pennington (1965) 381 U.S. 657 [14 L.Ed.2d 626, 85 S.Ct. 1585]). 2" The trial court granted the City's anti-SLAPP motion, which was reversed on appeal:

9/ Although the Appellants devote space in their opening brief to a discussion of the the Noerr-Pennington doctrine (Singer AOB, pp. 56-58), it has absolutely no relevance to the instant matter. While there are similarities between a §425.16 motion and a motion to dismiss under the NoerrPennington doctrine, this is not a federal case, and there are subtle but significant differences between an anti-SLAPP analysis conducted under California law and a Noerr-Pennington analysis conducted under federal law. -37-

"Having conducted an independent review of the City's anti-SLAPP motion, we find that the City satisfied its initial burden to show that Tichinin's 1983 action is based on conduct that qualifies for protection under the anti-SLAPP statute. In turn, however, Tichinin has satisfied his burden to make a prima facie showing of success on the merits. Specifically, his evidence would support findings that (1) he was engaged in conduct protected by the First Amendment rights to petition and right of free speech; (2) the City took adverse action in response to his conduct with the intent to retaliate against him and deter that conduct; and (3) the City's adverse action caused injuries that would deter a person of ordinary firmness from engaging in that conduct. Moreover, the record before us does not conclusively establish any fact that would negate a requisite element of Tichinin's claims or preclude his success on the merits as a matter of law. And last, the trial court's analysis and the City's arguments on appeal do not persuade us otherwise. "In short, Tichinin has demonstrated that his lawsuit is sufficiently viable to survive an anti-SLAPP motion and go forward. [Citation] Accordingly, we conclude that the trial court erred in granting the City's motion." (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1088; emphasis added.) Once again, there is nothing in the Tichinin case that deals with illegal investigative activities such as wiretapping and computer hacking, as is the case here. The Tichinin court's affirmation of the fact that a pre-litigation investigation that only involves legal investigative methods constitutes "petitioning activity" subject to a §425.16 motion to dismiss is merely an accurate statement of the law, with little relevance to the question as to whether the illegal "investigative" activities that occurred in the case at bar are protected by that statute. Gerbosi v. Gaims, Weil, West & Epstein, LLP , supra, 193 Cal.App.4th 435, 446-447 ("Gerbosi"), on the other hand, is comparable to the circumstances of the instant action. Gerbosi involved two related

lawsuits against a law firm and client that had used the services of the notorious Anthony Pellicano to "investigate" the activities of the two plaintiffs. One of the Gerbosi plaintiffs (Finn) had been romantically involved with a client of the defendant law firm. After her affair with the client ended, she gave deposition testimony adverse to the client in a wrongful termination lawsuit that he had filed against a former employer. Ostensibly in response to that adverse testimony, the client hired Pellicano to "investigate" Finn. Shortly thereafter, the client retained the Gaims law firm, and Gaims had communications with Pellicano in connection with their representation of the client. Finn and the client subsequently engaged in multiple litigations against each other where the client was represented by Gaims, and which ultimately resulted in a global settlement. Several years later, Pellicano and the client, along with others, were indicted by a federal grand jury on conspiracy and wiretapping charges. Eventually, the client agreed to plead guilty and to testify against Pellicano, and did so at Pellicano's trial. Shortly thereafter, Gerbosi and Finn filed separate complaints against the client and Gaims, alleging multiple causes of action, including, inter alia, unlawful eavesdropping, which were consolidated on appeal. The substance of Finn's action was embodied in her allegations that the client, along with Pellicano and Gaims, had "set out to destroy" her after she and the client had separated, and that they conspired to use, and did use, illegal wiretaps and harassing lawsuits to accomplish their goal. The Gaims firm filed an anti-SLAPP motion that argued that all of Finn's causes of action "arose from" the firm's acts in furtherance of its petitioning rights vis-à-vis representing their client during the course of the litigation that had transpired between their client and Finn, and as a result, its petitioning activities in representing Pfeifer constituted "protected

activities" within the meaning of the anti-SLAPP statute, and that Finn could not show a probability of prevailing on her claims for several reasons, including, among others, that Finn's causes of action were barred by the applicable statutes of limitations. The trial court denied the law firm's antiSLAPP motion against Finn, but on appeal, Division Eight of this Court reversed the denial as to all causes of action except for her cause of action for illegal eavesdropping. In its decision, the Gerbosi court held: "Here, to the extent that Gaims's anti-SLAPP motion sought to strike Finn's privacy-related causes of action, the assertedly protected activity must be said to be wiretapping in the course of representing a client. Under no factual scenario offered by Gaims is such wiretapping activity protected by the constitutional guarantees of free speech and petition. Gaims's argument that its evidence showed it did not do the acts that Finn alleges it did is more suited to the second step of an anti-SLAPP motion. A showing that a defendant did not do an alleged activity is not a showing that the alleged activity is a protected activity. By way of an extreme example, if Finn filed a personal injury complaint alleging that Gaims physically assaulted her in an attempt to dissuade her from testifying against Pfeifer in his wrongful termination lawsuit, could Gaims invoke the anti-SLAPP statute to strike the complaint by denying Finn's assault allegations? We are certain that the answer is no. The bottom line is this: section 425.16 was not enacted to protect an attorney who allegedly hired an "investigator" like Anthony Pellicano to wiretap telephones so as to get an unfair advantage in a client's legal matters. "Because Finn's causes of action alleging that Gaims engaged in wiretapping activity do not fall within the protective ambit of the anti-SLAPP statute, we need not determine whether Finn showed a probability of prevailing on those causes of action. Again, the record suggests that Gaims may well have winning defenses to Finn's causes of action alleging criminal activity, but those defenses must be established by a procedural tool other than the anti-SLAPP motion procedure. (Gerbosi v. Gaims, Weil, West & Epstein, LLC, supra, 199 Cal.App.4th at 446-447; emphasis added.) -40-

In Lefebvre v. Lefebvre, supra, 199 Cal.App.4th 696, a husband sued his former wife and another individual for malicious prosecution, false arrest and imprisonment, negligent statements without justification, intentional infliction of emotional distress, and for damages for violation of his civil rights pursuant to Civil Code §52.1 for having filed a false criminal report that resulted in his arrest, imprisonment and trial for having purportedly threatened to murder the wife and their children. The wife and alleged accomplice filed an anti-SLAPP motion, which was denied by the trial court. On appeal, the wife and accomplice argued that the denial must be reversed, because all of the husband's claims arose from the wife's criminal report to the police and because her report was a "privileged communication" under Civil Code section 47, it was a "protected activity" under the anti-SLAPP statute. They also argues that a privileged communication under Civil Code section 47 cannot give rise to liability, thus defeating any possibility that the husband had any "probability of prevailing" in his current case. In upholding the trial court's denial of the anti-SLAPP motion, Division Eight reiterated the decision that it had rendered in Gerbosi, and, relying on Flatley, distinguished the role that the litigation privilege plays in the context of an anti-SLAPP motion that involves illegal activity. We agree with Alice that the privilege established in Civil Code section 47 has been applied in numerous cases that involved false reports or perjured testimony, but find this legal proposition is irrelevant for purposes of the first step of the anti-SLAPP procedure. Alice may have a valid privilege-based defense which she may present in another procedural context, but such a defense may not be presented by way of an anti-SLAPP motion. The defense could be presented in the context of an anti-SLAPP motion only if the act upon which Jon sued was a protected activity within the meaning of the anti-SLAPP statute. For the reasons we have -41-

stated, we agree with the trial court that Alice did not make such a showing. Filing a false criminal complaint is an illegal activity, not a constitutionally protected exercise of the rights of petition or free speech, and that is the end of Alice's anti-SLAPP motion. (Lefebvre v. Lefebvre, supra, 199 Cal.App.4th at 706-707; emphasis added.) The Appellants argue that the "evidence" they presented in the various Declarations submitted in support of their motion to dismiss shows showed that they "did not do" the acts alleged, and as such, the claims asserted in the Complaint's second cause of action cannot stand. However, as the Lefebvre court noted, this argument is more suited to the second step of an anti-SLAPP motion analysis, and "[a] showing that a defendant did not do an alleged activity is not a showing that the alleged activity is a protected activity." (Gerbosi v. Gaims, Weil, West, Epstein, LLC, supra, 199 Cal.App.4th at 446; emphasis added.) A §425.16 special motion to strike is solely concerned with whether a complaint or cause of action is one "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 . . ." (Code Civ.Proc. §425.16(b)(1)). It is the defendants' burden to show that the acts complained of constituted "protected activity" in the first instance — a point that the Appellants understandably choose to ignore for the most part. Instead, throughout their Opening Briefs they operate from the assumption that their assertion that the activity alleged is subject to the litigation privilege somehow requires the court to move to the second prong of the anti-SLAPP analysis. (See, e.g., Singer AOB, pp. 19-22; A.A., pp. 1:187:15-189:6.) As Flatley, Gerbosi and Lefebvre all hold, this is a misinterpretation of the nature of the anti-SLAPP motion analysis. If the activity complained of does not constitute protected activity in the first instance, then the anti-SLAPP -42-

inquiry ends at that point, and the evidentiary analysis conducted in the second prong of an anti-SLAPP analysis never comes into play — it is only in the second prong of the analysis that the burden shifts to the plaintiff to provide an evidentiary basis for the cause of action or complaint that is the subject of the motion. This is precisely the point that the trial court made in its ruling denying the Appellants' Motion to Dismiss with respect to the Complaint's second cause of action, and is precisely the point that the Appellants fail to appreciate. It also needs to be noted that the "we did not do it" claims contained in the Brettler, Arazm, Koules and Paresis Declarations were only filed by the Appellants when their reply papers were filed, after the Respondent had already filed his opposition. These declarations raised new issues and presented evidence that had not been raised in Appellants' initial moving papers. When the Respondent's attempt to file supplemental declarations responding to these "new" issues and evidence, the Appellants objected, and as a result those responsive declarations were explicitly not considered by the trial court in reaching its decision. '—°' While it is increasingly a part of modern motion practice to attempt to blindside an opposing party by withholding evidence material to the motion until after the opponent has already replied, Respondent respectfully submits that this practice raises serious issues of due process, especially in the context of an anti-SLAPP or summary judgment proceeding (which is arguably analogous to the second prong of an anti-

10/ It can also be argued that by refusing to consider the Respondent's supplemental responsive declarations, the trial court utilized the narrowest possible basis in denying the Appellants' anti-SLAPP motion, and arguably gave the Appellants a much broader evidentiary scope in its consideration of the motion than they were actually entitled to receive. -43-

SLAPP analysis). At least one court has held that this practice is barred in a summary judgment motion pursuant by Code of Civil Procedure §437c(b). (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra, 102 Cal.App.4th 308, 312-313, 316 ["Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail"].) The due process issues raised by this "blindside" by the Appellants by their presentation of new issues and new "evidence" in their reply papers is exacerbated by the discovery bar contained in §425.16(g), which stays 141 discovery proceedings in the action . . . upon the filing of a notice of motion made pursuant to this section." Had the Appellants presented these issues and evidentiary declarations in their initial moving papers, the Respondent would have at a minimum had the opportunity to seek leave to conduct discovery on these issues prior to filing his opposing paperwork, including, inter alia, subpoenas to Google and other internet carriers and depositions of the defendants. (See, e.g., Gerbosi, supra, 199 Cal.App.4th at 442.) As it was, because these new issues were raised in reply papers and the trial court refused to consider the supplemental declarations responding to those issues, Respondent was deprived of his opportunity to respond to these new contentions. In summary, Respondent's cause of action for violation of civil rights due to eavesdropping and computer hacking is not subject to a §425.16 motion to dismiss in the first instance, because the activities complained of are illegal as a matter of law. As such, Appellants' claims that they "did not do" the activities complained of and/or that the activities were subject to the litigation privilege are irrelevant in the context of an anti-SLAPP motion. The trial court properly denied Appellants' motion to

dismiss Respondent's second cause of action, and that decision should be upheld by this Court.

VI. SINCE RESPONDENT'S CAUSES OF ACTION FOR INTENTIONAL AND NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS STEM FROM THE EXTORTION AND CIVIL RIGHTS CAUSES OF ACTION, THE TRIAL COURT'S DENIAL OF APPELLANTS' ANTI-SLAPP MOTION WAS PROPER AS TO THOSE CAUSES OF ACTION In their Opening Brief, the Appellants agree with the trial court's conclusion that "All causes of action arise out of the extortion or wiretapping/computer hacking allegations" (A.A. 2:417), even though they argue once again that, contrary to the trial court's conclusion, the antiSLAPP statute is applicable to the Respondent's emotional distress claims, and that"the plaintiff bears the burden of establishing a 'probability of prevailing' on the merits of [those] claims. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 906.)" (Singer AOB, pp. 48, 50-51.) As discussed above, the "burden of establishing a 'probability of prevailing' . ." is only germane to the second prong of an anti-SLAPP analysis, and due to the nature of the extortion and wiretapping/computer hacking claims in Respondent's complaint, they do not constitute protected activities within the ambit of §425.16, and under Flatley, Gerbosi and Lefebvre, are not subject to this second prong of an anti-SLAPP analysis. As such, the entirety of the Appellants' argument regarding Respondent's emotional distress claims is misplaced. Plaintiff is only required to establish a probability of success if the actions complained of constituted "protected activity" within the meaning of the anti-SLAPP

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statute. They could not do so, because the defendants' acts were illegal in the first instance. Since the emotional distress claims flow from these illegal acts, those causes of action are in turn not subject to the second prong of the anti-SLAPP analysis. The trial court's denial of Appellants' motion to dismiss was correct, and should be upheld on appeal.

VII. CONCLUSION A special motion to dismiss is a preliminary procedural motion, designed to thwart meritless claims that interfere with the legitimate exercise of constitutionally-protected rights. As the acts complained do not "arise" out of such activities, the trial court's denial of the Appellants §425.16 motion to dismiss was proper. To the extent the litigation privilege may be applicable to this matter, the Appellants may have other procedural remedies available to them in this matter besides an anti-SLAPP motion. They can demur. After discovery, they are also entitled to move for summary judgment. For all of the foregoing reasons, the special motion to strike the lawsuit filed by the Respondent in this matter against the Appellants herein was properly denied. and the trial court's determination of this matter should be upheld on appeal. Respondent respectfully requests an award of costs on appeal. Dated: December 7, 2012 LAW OFFICES OF BARRY P. KING

BARRY P. KING Attorney for Plaintiff and Respondent, MIKE MALIN

CERTIFICATE OF COMPLIANCE (Cal. Rules of Court 8.204(c)(1)) Pursuant to the provisions of Rule 8.204(c)(1), California Rules of Court, in reliance upon the word count feature of the software used, I hereby certify that the attached Respondent's Brief contains 13,742 words, exclusive of those materials not required to be counted under Rule 8.204(c)(3). Dated: December 7, 2012 LAW OFFICES OF BARRY P. KING

BARRY P. KING' Attorney for Plaintiff and Respondent, MIKE MALIN

PROOF OF SERVICE
STATE OF CALIFORNIA ) s.s. COUNTY OF LOS ANGELES )

I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is 9255 Sunset Boulevard, Suite 420, Los Angeles, California 90069. On December 7, 2012, I served the foregoing document(s) described as: RESPONDENT'S BRIEF on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST

X

(BY MAIL) In accordance with the regular mail collection and processing practices of this business office, with which I am familiar, by means of which mail is deposited with the United States Postal Service at Los Angeles, California that same day in the ordinary course of business, I deposited such sealed envelope for collection and mailing on this same date following ordinary business practices. (BY PERSONAL SERVICE) By personally delivering copies to the person served I delivered such envelope by hand to the offices of the addressee pursuant to C.C.P. Section 1011. I caused such envelope to be delivered by hand to the office of the addressee, either by overnight delivery via Federal Express or by local courier. I caused such envelope to be delivered to the office of the addressee, either by telecopier or facsimile machine, pursuant to the provision of California Rules of Court, 2.306. Proofs of such delivery are attached to this proof of service. I caused such document to be transmitted via e-mail to the e-mail addresses set forth on the attached Service List on this date prior to 4:00 p.m.

X

X

STATE X I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on December 7, 2012, at Los Angeles, California.

FEDERAL I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on ,at Los Angeles, California.

Cliff rd D.

rtin

SERVICE LIST

Jeremy B. Rosen, Esq. Felix Shafir, Esq. HORVITZ & LEVY LLP 15760 Ventura Boulevard, 18th Floor Encino, California 91436-3000 Mark Goldowitz, Esq. Paul Clifford, Esq. CALIFORNIA ANTI-SLAPP PROJECT 2903 Sacramento Street Berkeley, California 94702 Hon. Mary M. Strobel LOS ANGELES SUPERIOR COURT 111 North Hill Street Department 32 Los Angeles, California 90012

Attorneys for Appellants Lavely & Singer, Martin D. Singer and Andrew B. Brettler

Attorneys for Appellants Shareen Arazm and Oren Koules

Clerk, CALIFORNIA SUPREME COURT Electronic Copy per C.R.C. 8.212(c)(i) or (ii) 350 McAllister Street San Francisco, California 90402-3600 Website Address: http://www.courtinfo.ca.gov/courtsofappeal/appbriefs.cfm

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