Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County. County Super. Ct. No. GC 038680 Jan A. Pluim, Judge.
Edgardo M. Lopez for Defendant, Cross-Complainant and Appellant.
Lowe & Baik, Jeffre T. Lowe and John A. S. Baik for Cross-Defendant and Respondent Elton Quan.
Tom C. Tsay for Plaintiff, Cross-Defendant and Respondent Mie Sheung Quan.
WOODS, J.
Cross-complainant Wilson Fong appeals from the order granting the special motions of cross-defendants Mie Sheung Quan (Mie) and Elton Quan (Elton) to strike the emotional distress cause of action of Fong’s cross-complaint under the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. (Code Civ. Proc., § 425.16.) Fong contends the Quans’ conduct was criminal extortion as a matter of law and not protected by the anti-SLAPP statute. We conclude the alleged conduct was privileged and affirm.
FACTUAL AND PROCEDURAL SYNOPSIS
According to Fong, Mie filed a complaint against Fong for conversion, breach of fiduciary duty, constructive trust, fraud, negligence, unjust enrichment, accounting, assault and battery and intentional infliction of emotional distress.
The complaint is not part of the record on appeal. Moreover, we admonish appellant that California Rules of Court, rule 8.204(a)(1)(C) mandates that all facts be supported by citations to the record. Appellant’s brief contains pages of factual background with only a few citations to the record.
Fong filed a cross-complaint against Mie, Elton and Lai Hing Quan. Subsequently, Fong filed a first amended cross-complaint for breach of oral contract, conversion, unjust enrichment and intentional infliction of emotional distress. The fourth cause of action for intentional infliction of emotional distress alleged cross-defendants Mie and Elton filed four frivolous criminal reports against Fong (for theft, burglary, battery and spousal abuse) and a civil domestic violence case. The fourth cause of action alleged that Elton made several telephone calls demanding Fong pay Elton’s family $200,000 or Elton would create problems for Fong and that as a result of cross-defendants’ acts, Fong was arrested and suffered, and continued to suffer, severe emotional distress.
Mie and Elton filed anti-SLAPP motions to strike the fourth cause of action. The court granted the motions finding the alleged conduct was protected by Code of Civil Procedure section 425.16 and absolutely privileged under Civil Code section 47, subdivision (b).
Unless otherwise noted, all statutory references are to the Civil Code.
The court granted the anti-SLAPP motion on October 5, 2007. On October 10, 2007, appellant filed a second amended cross-complaint alleging a third cause of action for intentional infliction of emotional distress eliminating the allegations about police reports/civil action/arrest.
Fong filed a timely notice of appeal from the order granting the anti-SLAPP motions.
DISCUSSION
“On appeal from an order granting or denying a motion pursuant to [Code of Civil Procedure] section 425.16, the appellate court engages in a two-step process, determining, first, whether the defendant made a threshold showing that the challenged cause of action is one arising out of acts done in furtherance of the defendant’s exercise of a right to petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute; and second, whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056.)
“We review the trial court’s rulings on an anti-SLAPP motion de novo, conducting an independent review of the entire record.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212; Tutor-Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609 [that review includes whether the statute applies to the challenged claim].)
Citing Flatley v. Mauro (2006) 39 Cal.4th 299, 313, 317, appellant contends that respondents’ conduct was criminal extortion as a matter of law and therefore not protected by the anti-SLAPP statute. In the instant case, the alleged illegal activity was filing police reports and a civil case. Appellant suggests that if viewed in isolation that activity could be interpreted as an assertion of the right to petition, but with Mie’s failure to successfully withdraw $200,000, Elton’s demand appellant pay up or appellant would be in trouble, and Mie’s “gaming” the domestic violence court, those acts were actually efforts to extort money.
In opposition to the anti-SLAPP motion, appellant filed a declaration stating Mie withdrew $200,000 from their joint bank account and had the bank issue a cashier’s check payable to herself and then left a voicemail message Elton would not pursue the police report; after appellant stopped payment on the check, Elton called and demanded appellant pay $200,000 or Elton could create problems for appellant; Mie applied to the domestic violence court for a TRO which drove appellant out of the residence they used to share even though she was not living at the residence, and Mie set up appellant for arrest in a park.
Appellant cites to the definition of extortion contained in Flatley. “‘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: [¶] . . . [¶] 2. To accuse the individual threatened . . . of any crime; or, [¶] 3. To expose, or impute to him . . . any deformity, disgrace or 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 v. Mauro, supra, 39 Cal.4th at p. 326.)
In Flatley, a well-known entertainer sued an attorney for, among other things, extortion and emotional distress, based on a demand letter the attorney sent on behalf of a client claiming the entertainer had raped her and on subsequent telephone calls to the entertainer’s attorneys demanding a seven-figure payment to settle the claims. (Flatley v. Mauro, supra, 39 Cal.4th at p. 305.) The attorney argued the complaint arose from his constitutionally protected right of petition as the letter was a prelitigation settlement offer. (Ibid.) The court found the letter and calls constituted criminal extortion as a matter of law and were not protected by the anti-SLAPP statute. (Id., at pp. 305, 326-333.)
In the case at bar, the court found appellant could not prevail on the fourth cause of action as the alleged conduct was absolutely privileged under section 47, subdivision (b). The litigation privilege of section 47, subdivision (b) is an absolute privilege and bars all tort causes of action except a claim of malicious prosecution. (Flatley v. Mauro, supra, 39 Cal.4th at p. 322.)
Section 47, subdivision (b) provides a privilege for publications in any “judicial proceeding” or in “the initiation” of any proceeding authorized by law. Filing a police report or a civil action are such proceedings. (Hagberg. v. California Federal Bank (2004) 32 Cal.4th 350, 355; Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754; see also Cote v. Henderson (1990) 218 Cal.App.3d 796, 806 [in analyzing an emotional distress claim, the court noted the “defendant was absolutely privileged in reporting to the police and the district attorney the acts which she complained plaintiff committed on her person and against her will.”].) Hence, filing the police reports and civil case was not illegal as a matter of law and neither an attempt at extortion or a threat.
In addition, even if we look at all the alleged conduct, which included Elton’s demanding $200,000 from appellant, “where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to [Code of Civil Procedure] section 425.16 unless the protected conduct is ‘merely incidental’ to the unprotected conduct.” (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103.) As appellant alleged that as a result of the acts of respondents, he was arrested, suffered and continued to suffer emotional distress, filing the police reports and the civil action were not incidental but inextricably bound to the unprotected conduct.
Accordingly, as the cause of action for emotional distress arose from protected activity and was absolutely privileged, meeting both prongs of the anti-SLAPP statute, the court properly granted the motion to strike the fourth cause of action of the cross-complaint.
DISPOSITION
The order is affirmed. Respondents to recover costs on appeal.
We concur: PERLUSS, P.J., ZELON, J.