Filed 11/5/15 Berryhill v. Burton CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION FIVE



IRENE BERRYHILL et al.,                                              B260683

         Plaintiffs and Respondents,                                 (Los Angeles County Super. Ct.
                                                                      No. BC553674)
         v.

JAMES BURTON et al.,

         Defendants and Appellants.




         APPEAL from an order of the Superior Court of Los Angeles, Ruth A. Kwan,
Judge. Affirmed.
         Schorr Law, Zachary D. Schorr, Rachael L. Shinoskie, Stephanie C. Goldstein, for
Defendants and Appellants.
         LA SuperLawyers Inc. and William W. Bloch, for Plaintiffs and Respondents.
                                          _______________________
       Defendants and appellants James and Ericka Burton appeal from the trial court’s
order denying their special motion to strike the fifth cause of action of plaintiffs and
respondents Irene Berryhill and Aneka Braxton’s complaint under the anti-SLAPP1
statute, Code of Civil Procedure section 425.16.2 The fifth cause of action alleges civil
extortion on the basis of a cease and desist letter (Letter) defendants sent to Berryhill,
purportedly threatening to criminally prosecute plaintiffs if they continued their efforts to
recover their interest in real property that defendants claim to own.
       We affirm the trial court’s order.


                       FACTS AND PROCEDURAL HISTORY


       On June 1, 1995, plaintiffs purchased a single family home located at 3669
Kensley Drive, Inglewood, California, in Los Angeles County (Property). Berryhill
obtained a loan secured by a first deed of trust in favor of the lender, J.P. Morgan Chase
Bank, N.A. (Chase). In March of 2014, plaintiffs listed the Property for sale by owner.
Berryhill informed defendants, with whom plaintiffs were friends, that plaintiffs had
listed the Property for sale. Defendants expressed an interest in purchasing the Property,
and the parties began discussing terms. The parties disagree as to whether an agreement
was reached. Although its validity is disputed, plaintiffs and defendants agree that
plaintiffs signed a quitclaim deed to the house on May 12, 2014. Defendants began
construction on the Property without plaintiffs’ permission sometime in May. The



       1“SLAPP is an acronym for ‘strategic lawsuit against public participation.’”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.) An order
granting or denying a special motion to strike under Code of Civil Procedure section
425.16 is appealable. (Code Civ. Proc., § 904.1, subd. (a)(13).)

       2All further statutory references are to the Code of Civil Procedure, unless
otherwise stated.

                                              2
quitclaim deed was notarized in July, with Debbie Montiero, a friend of both parties,
acting as the notary. Defendants recorded the quitclaim deed on July 15, 2014.
       On or about July 27, 2014, James Burton sent the Letter to Berryhill, stating:
       “You have threatened me, my family, our mutual friend (Debbie Montiero aka
Debbie Everage), my credit, my job, Ericka’s retirement account, broke [sic] into our
house, change [sic] the locks without our permission, interfered with the workers at our
house . . . continually harassed and extorted us.
       “I recently met with officials at the Inglewood Police Department, City Attorney’s
Office (Criminal Division) and District Attorney’s Office to discuss evidence regarding
the following crimes: [¶] Criminal Trespass[,] CA Penal Code Section § 422P[,] Penalty
up to 16 months in prison[;] [¶] Vandalism[,] CA Penal Code Section § 594PC[,]
Penalty up to 1 yr in jail[;] [¶] Burglary[,] CA Penal Code Section § 459PC[,] Penalty
up to 6 yrs in prison[; and] [¶] Extortion[,] CA Penal Code Sections § 518PC-527PC[,]
Penalty up to 4 yrs in prison[.]
       “The conclusion of the meetings were [sic] if we are willing to press charges
against you for the crimes listed above the Police are willing to make an arrest and the
District Attorney’s Office is willing to prosecute. Extortion is also a Federal Crime
which can be charged separately. Additionally, Aneka may face charges as an accessory.
       “Irene Berryhill and Aneka Braxton you are hereby ordered to immediately Cease
and Desist all communication with James Burton, Ericka Burton and Riley Burton, as
well as, Debbie Montiero (aka Debbie Everage).
       “You are further ordered to stop extorting, harassing, threatening, libeling,
slandering James Burton, Ericka Burton and Riley Burton, as well as, Debbie Montiero
(aka Debbie Everage) and interfering with the contractors and workers at 3669 Kensley
Dr. Inglewood, CA 90305.
       “We have performed all of our obligations under the original contract and only
contract that we all agreed to:
       “1. We gave you $25,000 down when escrow open [sic] (which you cashed)



                                              3
       “2. We assumed the obligation for paying your mortgage (starting July 15, 2014)
(which you cashed)
       “3. We gave you the final down payment of $8,105 ($10,000 - $1,895 toward
closing costs) (which you cashed)
       “You are hereby notified that under our assumption agreement you are no longer
required to make payments to Chase as we have assumed responsibility for making those
payments (as of July 15, 2014 which you accepted). Any payments that you make
toward the mortgage that we have assumed responsibility for will be considered a gift and
will not be reimbursed.
       “If you continue to extort, harass, threaten, libel, slander, or interfere with us, or
Debbie Montiero (aka Debbie Everage) or any of the contractors or workers we will be
forced to contact the authorities and press charges.”
       On August 5, 2014, plaintiffs filed a complaint against defendants for quiet title,
intentional misrepresentation – fraud, negligent misrepresentation, negligence, civil
extortion, intentional infliction of emotional distress, cancellation of instruments, and
declaratory relief.3 The quitclaim deed and the Letter were attached. Plaintiffs’ civil
extortion claim was based entirely on the Letter.
       On September 23, 2014, defendants filed a special motion to strike the fifth cause
of action for civil extortion pursuant to section 425.16, attaching declarations of James
Burton, Ericka Burton, and counsel Zachary Schorr. Defendants argued that the civil
extortion claim arose out of activity protected under section 425.16, subdivision (e), and
that plaintiffs could not establish a probability that they would prevail on the claim.
Defendants sought attorney fees in connection with the motion to strike.
       In their declarations, defendants stated: “. . . the Berryhill Plaintiffs began
interfering with our ownership of the Property in an attempt to force us to reconvey the
Property. These actions included, but were not limited to, sending us threatening text



       3   Debbie Monteiro and Chase are also named defendants, but are not parties to this
appeal.

                                               4
messages to [sic], trespassing on the Property, changing the locks without our permission,
and interfering with our construction workers’ ability to do [sic] complete the renovation
of the Property. In addition, every time we attempted to contact the Berryhill Plaintiffs to
resolve the issues regarding the transfer of the Property, the Berryhill Plaintiffs
threatened legal action. [¶] [¶] In a last ditch effort to resolve the dispute without the
intervention of legal counsel or litigation, on July 27, 2014, I sent a letter to Irene
Berryhill requesting her to cease and desist her unlawful interference with the Burtons’
property rights (the “Cease and Desist Letter”). A true copy of the Cease and Desist
Letter is attached . . . . In the Cease and Desist Letter, I requested Irene Berryhill to cease
interfering with the Burtons property rights in the Property. Specifically the Cease and
Desist Letter: (a) advises Irene Berryhill that the Burtons have contacted the police
regarding her interference with their ownership of the Property; (b) requests Irene
Berryhill to stop interfering with the Burtons ownership of the Property; and (c) advises
Irene Berryhill that if she does not stop interfering with the Burtons ownership of the
Property, we will be forced to press charges. The Cease and Desist Letter also confirmed
that Ericka Burton and I had assumed the Loan and that we had performed all of [sic]
their obligations under the Agreement. At no point in the letter did I demand payment or
property in exchange for not pressing charges.” Schorr and defendants declared that
defendants retained Schorr in connection with the dispute over the Property on July 23,
2014.
        On October 9, 2014, plaintiffs filed an opposition to the special motion to strike,
attaching the declaration of Berryhill, the quitclaim deed, a letter from Berryhill to
defendants dated July 28, 2014, and the Letter. Relying on Flatley v. Mauro (2006) 39
Cal.4th 299, 326 (Flatley), plaintiffs argued that the Letter constituted extortion as a
matter of law, which was not protected petitioning activity under section 425.16.
Alternately, they argued that they could demonstrate a probability success on their civil
extortion cause of action. Plaintiffs also asserted defendants were not entitled to
attorneys fees. They requested attorney fees and costs.



                                               5
       Berryhill’s declaration stated, in pertinent part: “. . . [O]n or about July 28, 2014,
… Defendant Burton wrote to me, and I received the letter . . . which I will call the
‘Threat Letter.’ The Threat Letter clearly threatened me and my daughter with criminal
prosecution, if we did not stop efforts to recover our interest in the Property and to
protect our rights, and was also written to stop my efforts to discuss this issue with the
crooked notary, Ms. Debbie Monteiro. My head swam when I first read all of the
criminal charges Mr. Burton was threatening me with. [¶] The letter repeated threats of
my daughter and I facing years in prison for criminal charges. This letter was extremely
upsetting to me, and put me in fear of possible arrest or prosecution.”
       On October 16, 2014, defendants replied to the opposition to the special motion to
strike, refuting plaintiff’s argument that the Letter constituted extortion as a matter of
law. On October 20, 2014, plaintiffs filed a supplemental brief citing new case authority,
Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405, in support of its argument that a
prelitigation demand for money or relinquishing claims in property coupled with a threat
of criminal prosecution is extortion as a matter of law, and not entitled to anti-SLAPP
protection.
       In a minute order dated October 23, 2014, the trial court adopted its tentative
ruling, denying defendant’s special motion to strike. The trial court concluded the
illegality exception to anti-SLAPP protection under section 425.16 set forth in Flatley,
supra, 39 Cal.4th at p. 326, applied to the fifth cause of action, because the gravamen of
the claim was that “Defendants threatened Plaintiffs with criminal prosecution if
Plaintiffs did not stop efforts to recover their interest in the subject property and protect
their rights.” The court ruled: “In the Letter, J. Burton made it clear the police were
willing to make arrests and the District Attorney’s Office was willing to prosecute
Berryhill for criminal trespass, vandalism, burglary, and extortion. J. Burton also
indicated ‘Aneka may face charges as an accessory.’ Moreover, J. Burton threatened to
‘contact the authorities and press charges’ if Plaintiffs continued to ‘extort, harass,
threaten, libel, slander, or interfere with’ Defendants, Debbie Montiero, and any of
Defendant’s contractors or workers. In essence, Defendants threatened to press criminal

                                               6
charges against Plaintiffs if they did not give up any property rights (Plaintiffs believed
they had) in the subject property . . . . Defendants declared Plaintiffs interfered with their
ownership of the property by, among other things, trespassing on the property, changing
the locks without permission, an [sic] interfering with their construction workers’ ability
to complete renovation of the property and the acts of interference were done in an effort
to force defendants to reconvey the property. Additionally, Defendants declared the
‘Letter’ ‘advises Irene Berryhill that the Burtons have contacted the police regarding her
interference with their ownership of the Property,’ ‘requests Irene Berryhill to stop
interfering with the Burton’s ownership of the Property’ and ‘advises Irene Berryhill that
if she does not stop interfering with the Burton’s ownership of the Property’ they would
be ‘forced to press charges.’ There can be no dispute Defendants threatened to file
charges if Plaintiffs did not give up any rights they have in the property (i.e. by not
interfering with Defendants’ property rights). [¶] Based on the forgoing, Defendant’s
special motion to strike is denied.” The trial court also stated that in light of its ruling it
would not reach the question of whether plaintiffs’ cause of action had a probability of
prevailing under the second prong of the anti-SLAPP analysis. The court denied
defendants’ request for attorney fees, but did not address plaintiffs’ requests for costs and
fees.
        Defendants timely appealed.


                                        DISCUSSION


        Defendants argue the trial court erred in denying the special motion to strike.
They contend plaintiffs’ claim arose from statements “made in connection with an issue
under consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law” under section 425.16, subdivision (e)(2), and is
therefore subject to a special motion to strike. Defendants further maintain that plaintiffs
cannot establish a probability that their civil extortion claim will prevail under the second
prong of the anti-SLAPP analysis because the Letter is subject to the litigation privilege

                                                7
under Civil Code section 47, subdivision (b). They urge reversal of the trial court’s order
with directions to the trial court to award reasonable attorney fees.
       Plaintiffs respond that the trial court correctly determined the Letter was
extortionate and therefore not protected under the anti-SLAPP statute. They argue that
even if the Letter was not illegal as a matter of law, they have established a probability of
prevailing on their claim. Plaintiffs assert defendants’ special motion to strike was
frivolous, and request an order to the trial court to make an award of attorney fees in their
favor pursuant to section 425.16, subdivision (c).
       We conclude that: (1) the evidence does not conclusively establish defendants’
petitioning activity was illegal as a matter of law and therefore unprotected by the anti-
SLAPP statute; and (2) defendants have made a prima facie showing that the fifth cause
of action arose from their petitioning activity, which is protected activity under section
425.16. Defendants have satisfied the first prong of the anti-SLAPP analysis; however,
there are triable issues of fact regarding whether the litigation privilege bars plaintiffs
from establishing that they have a probability of prevailing on their claim under the
second prong, and whether plaintiffs have otherwise established a probability of
prevailing on the merits of their civil extortion claim. Accordingly, we affirm the trial
court’s order denying defendants’ special motion to strike.


Relevant Law


       “A SLAPP suit is a meritless lawsuit ‘filed primarily to chill the defendant’s
exercise of First Amendment rights.’ [Citation.]” (Paul v. Friedman (2002) 95
Cal.App.4th 853, 861.) The Legislature has declared that “it is in the public interest to
encourage continued participation in matters of public significance, and . . . this
participation should not be chilled through abuse of the judicial process.” (§ 425.16,
subd. (a).) To this end, the Legislature enacted section 425.16, subdivision (b)(1), which
provides: “A cause of action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under the United States

                                               8
Constitution or the California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will prevail on the claim.”
“The trial court engages in a two-step process to determine whether to grant or deny a
section 425.16 motion to strike. [Citation.] The court first decides whether the defendant
has made a threshold showing that the acts at issue arose from protected activity.
[Citations.] Once the defendant meets this burden, then the court determines whether the
plaintiff has demonstrated a probability that he or she will prevail on the claim.
[Citation.] On appeal, we independently review whether section 425.16 applies and
whether the plaintiff has a probability of prevailing on the merits. [Citations.]”
(Summerfield v. Randolph (2011) 201 Cal.App.4th 127, 135.)
       In deciding whether the defendant has met the “arising from” requirement and
whether plaintiff has met the probability of prevailing requirement, we consider “the
pleadings, and supporting and opposing affidavits stating the facts upon which the
liability or defense is based.” (§ 425.16, subd. (b)(2); Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 820; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79
(Cotati).) In doing so, “‘we neither “weigh credibility [nor] compare the weight of the
evidence. Rather, . . . [we] accept as true the evidence favorable to the plaintiff [citation]
and evaluate the defendant’s evidence only to determine if it has defeated that submitted
by the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Flatley, supra, 39 Cal.4th
at p. 326.)


Analysis


       Defendants’ Letter is Protected Activity


       A defendant satisfies the first prong of the anti-SLAPP statute if he or she makes a
prima facie showing that the plaintiff’s cause of action “arises from” an act of the
defendant’s in furtherance of the defendant’s right of petition or free speech. (Cotati,

                                               9
supra, 29 Cal.4th at p. 78; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1417.)
To prevail on this prong, the defendant does not have to prove the validity of his or her
petitioning or speech activity. (Flatley, supra, 39 Cal.4th at p. 319.) “‘A defendant
meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of
the categories spelled out in section 425.16, subdivision (e) . . . .’ [Citations.]” (Cotati,
supra, at p. 78.) Section 425.16, subdivision (e) provides: “[An] ‘act in furtherance of a
person’s right of petition or free speech . . . in connection with a public issue’” includes,
among other categories, “(2) any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative, executive, or judicial body,
or any other official proceeding authorized by law.” Courts have construed the anti-
SLAPP statute broadly, holding it applicable in numerous situations where the defendants
were not engaged in formal communications but the communications were nonetheless
“made in connection with issues under consideration or review . . . [in an] official
proceeding authorized by law” pursuant to section 425.16, subdivision (e)(2). (Briggs v.
Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs).)
Communications preparatory to or made in anticipation of a court action are within the
protection of section 425.16. (Digerati Holdings, LLC v. Young Money Entertainment,
LLC (2011) 194 Cal.App.4th 873, 887 (Digerati Holdings); Briggs, supra, at p. 1115.) A
prelitigation statement comes within clause (1) or (2) of section 425.16, subdivision (e)
“if the statement ‘“concern[s] the subject of the dispute” and is made “in anticipation of
litigation ‘contemplated in good faith and under serious consideration’” [citation].’
[Citations.]” (Digerati Holdings, supra, at p. 887.)
       Here, the Letter clearly concerns the subject of the dispute. It addresses plaintiffs’
allegedly criminal activity in interference with defendants’ rights to the Property, and
advises plaintiffs that defendants have assumed the mortgage for the Property.
Defendants declared they made efforts to discuss the dispute with plaintiffs to no avail.
They retained a lawyer in connection with the dispute just prior to writing the Letter, and
considered the Letter to be a “last ditch effort” at resolution prior to bringing suit.
Plaintiffs filed the complaint within two weeks of receiving the Letter. Berryhill’s

                                              10
declaration attests to her personal view of the circumstances, but offers no additional
facts to bolster her beliefs. (People v. Fox (1958) 157 Cal.App.2d 426, 430 [guilt on
extortion charge is established through alleged perpetrator’s intent, not through effect on
victim].) Defendants’ declarations support their assertion that the Letter was written in
anticipation of litigation contemplated in good faith and under consideration. We
conclude they have made a prima facie showing that the fifth cause of action for civil
extortion, which was based solely on the Letter, arose from protected petitioning activity.
       Although it is not disputed that a demand letter will generally be considered
protected petitioning activity, in this case the court found, and plaintiffs maintain, that the
Letter constituted illegal extortion as a matter of law, undeserving of anti-SLAPP
protection pursuant to the exception set forth in Flatley, supra, 39 Cal.4th at pages 325-
333. We disagree. As we will discuss, the Flatley exception is narrow, and does not
extend to the circumstances of this case.
       The defendant in Flatley was an attorney who conceded sending a letter and
making several phone calls to the plaintiff demanding “a seven-figure payment” and
threatening litigation and public exposure of a rape and other alleged crimes if the
demand was not met. (Flatley, supra, 39 Cal.4th at p. 305.) The parties agreed as to the
substance of the letter and phone calls; however, the plaintiff asserted the
communications were criminal extortion, while the defendant argued the communications
were protected because they constituted a prelitigation settlement offer. (Id. at pp. 305-
306.) Flatley held that the defendant’s motion failed under the first prong of the anti-
SLAPP analysis because there was uncontroverted evidence that the defendant’s actions
constituted illegal extortion not protected under section 425.16. (Id. at pp. 325-333.)
       In reaching its conclusion, the Flatley court relied on Paul for Council v. Hanyecz
(2001) 85 Cal.App.4th 1356 (Paul), a case in which the defendants admitted money-
laundering, but argued that their laundering of campaign contributions was protected
under section 425.16 because they were acting in furtherance of their constitutional right
to free speech. (Id. at pp. 1361-1362.) Paul carved out a narrow exception to the anti-
SLAPP statute’s protections in this circumstance, reasoning that “section 425.16, by its

                                              11
express terms, does not apply to any activity that can conceivably be characterized as
being ‘“in furtherance”’ of a defendant’s protected speech or petition rights if, as a matter
of law, that activity was illegal and by reason of the illegality not constitutionally
protected. (Paul, supra, 85 Cal.App.4th at p. 1367.)” (Flatley, supra, at p. 316.) Flatley
agreed with the reasoning of Paul that protecting activity illegal as a matter of law would
be inconsistent with the purpose of section 425.16, because illegal activity is not a valid
activity undertaken in the furtherance of free speech. (Id. at p. 317.) The Flatley court
opined that “it would eviscerate the first step of the two-step inquiry set forth in the
statute if the defendant’s mere assertion that his underlying activity was constitutionally
protected sufficed to shift the burden to the plaintiff to establish a probability of
prevailing where it could be conclusively shown that the defendant’s underlying activity
was illegal and not constitutionally protected.” (Ibid.)
       Flatley held that “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 plaintiff has demonstrated a probability of prevailing, and the
showing required to establish conduct illegal as a matter of law—either through
defendant’s concession or by uncontroverted and conclusive evidence—is not the same
showing as the plaintiff’s second prong showing of probability of prevailing.” (Flatley,
supra, 39 Cal.4th at p. 320, italics added.)
       The Flatley court underscored the limited nature of its holding: “We emphasize
that our conclusion that [the defendant’s] communications constituted criminal extortion
as a matter of law are based on the specific and extreme circumstances of this case.
Extortion is the threat to accuse the victim of a crime or ‘expose, or impute to him . . .

                                               12
any deformity, disgrace or crime’ (Pen. Code, § 519) accompanied by a demand for
payment to prevent the accusation, exposure, or imputation from being made. Thus, our
opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation
negotiations, whether verbal or written, that may include threats to file a lawsuit, report
criminal behavior to authorities or publicize allegations of wrongdoing, necessarily
constitute extortion. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian
[(1990)] 218 Cal.App.3d [1058,] 1079 [‘a person, generally speaking, has a perfect right
to prosecute a lawsuit in good faith, or to provide information to the newspapers’].) Nor
is extortion committed by [a defendant] who threatens to report the illegal conduct of [a
plaintiff] unless the [plaintiff] desists from that conduct. In short, our discussion of what
extortion as a matter of law is limited to the specific facts of this case.” (Flatley, supra,
39 Cal.4th at p. 332, fn. 16, italics added.)
       Courts have interpreted the ruling in Flatley as carving out a very limited
exception to section 425.16, applicable only when the party opposing the anti-SLAPP
motion has established that there is no factual dispute between the parties regarding the
criminal conduct. (See Cross v. Cooper (2011) 197 Cal.App.4th 357, 385-388; Seltzer v.
Barnes (2010) 182 Cal.App.4th 953, 964-967.) The general rule is that “any ‘claimed
illegitimacy of the defendant’s acts is an issue which the plaintiff must raise and support
in the context of the discharge of the plaintiff’s [secondary] burden to provide a prima
facie showing of the merits of the plaintiff’s case.’ [Citation.]” (Navellier v. Sletten
(2002) 29 Cal.4th 82, 94 (Navellier).)
       In this case, defendants have not conceded that they engaged in illegal extortion,
and there is nothing in the Letter, the parties’ declarations, or other documentary
evidence that conclusively establishes extortion. As relevant here, “[e]xtortion 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,

                                                13
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 [Penal
Code] Section 519, is punishable in the same manner as if such money or property were
actually obtained by means of such threat.’ (Pen. Code, § 523.)” (Flatley, supra, 39
Cal.4th at p. 326.) “[G]uilt depends upon the intent of the person who makes the threat
and not the effect the threat has on the victim (People v. Fox, supra, 157 Cal.App.2d at p.
430).” (People v. Umana (2006) 138 Cal.App.4th 625, 641.)
       Following Flatley, activity has been held illegal extortion as a matter of law only
where there is an explicit demand for money or property, or the crime the defendants
threaten to expose is unrelated to the subject litigation. (See, e.g. Cohen v. Brown (2009)
173 Cal.App.4th 302, 317-318 [explicit threats to report attorney to the state bar and
make his life a “living hell” unless attorney immediately signed off on a settlement
check]; Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799, 806 [explicit threat to report
former employee to enforcement agencies and otherwise expose alleged crimes unless
employee paid “damages exceeding $75,000”]; Stenehjem v. Sareen, supra, 226
Cal.App.4th at p. 1423 [threats to expose former employer to federal authorities for
alleged violations of the False Claims Act which were “‘entirely unrelated to any alleged
injury suffered by’ [employee]” unless employer negotiated a settlement of employee’s
defamation and wrongful termination claims].)
       Here, there is no evidence that the prosecution threatened was related to the
underlying dispute. The letter solely concerned plaintiffs’ interference with defendants’
ownership of the Property. Neither the Letter nor defendants’ declarations conclusively
establish defendants threatened prosecution if plaintiffs did not pay money or relinquish
property rights. The Letter threatened prosecution only if plaintiffs persisted in the
criminal acts of “extorting, harassing, threatening, libeling, slandering James Burton,
Ericka Burton and Riley Burton, as well as Debbie Montiero (aka Debbie Everage) and
interfering with the contractors and workers at 3669 Kensley Dr. Inglewood, CA 90305.”
There was no demand that plaintiffs cease legal efforts to regain their property. The
Letter separately directed plaintiffs to cease making mortgage payments to Chase, with

                                             14
the consequence that such payments would not be returned. There was no threat of
criminal prosecution if mortgage payments were made. Moreover, defendants’
declarations show that they did not believe plaintiffs had any property rights to
relinquish. Instead, they believed plaintiffs’ acts were aimed at regaining defendants’
Property. There is no direct evidence of the specific intent necessary for extortion.
Defendants met their burden under the first prong of the anti-SLAPP statute by making a
prima facie showing that plaintiffs’ extortion claim arose from their protected petitioning
activity, which was not subject to the Flatley illegality exception.


       The Second Prong


       To establish a probability of prevailing on a claim under the second prong, the
plaintiff responding to an anti-SLAPP motion “‘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 plaintiff is credited.’
[Citations.] In deciding the question of potential merit, the trial court considers the
pleadings and evidentiary submissions of both the plaintiff and the defendant (§ 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
defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish
evidentiary support for the claim. [Citation.]” (Wilson v. Parker, Covert & Chidester
(2002) 28 Cal.4th 811, 821, superseded by statute on another point as stated in Hutton v.
Hafif (2007) 150 Cal.App.4th 527, 547-550.) Because the anti-SLAPP statute (1) allows
early intervention in lawsuits alleging unmeritorious causes of action that implicate free
speech and petition concerns, and (2) limits the opportunity to engage in discovery, a
plaintiff’s burden of establishing a probability of prevailing is not high. We accept as
true all evidence favoring the plaintiff, and consider the defendant’s evidence only to
ascertain whether it defeats the plaintiff’s submission as a matter of law. (Overstock.com,
Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700; Ampex Corp. v.

                                             15
Cargle (2005) 128 Cal.App.4th 1569, 1576.) Only a cause of action lacking “even
minimal merit” constitutes a SLAPP. (Navellier, supra, 29 Cal.4th at p. 89.)
       Defendants contend that the litigation privilege of Civil Code section 47,
subdivision (b) applies to the Letter, barring plaintiffs from establishing a probability of
prevailing on their extortion claim. Section 47, subdivision (b) provides an absolute
privilege for a publication or broadcast made in any legislative, judicial, or other official
proceeding authorized by law. (Albertson v. Raboff (1956) 46 Cal.2d 375, 379.) The
litigation privilege is not limited to communications to or from governmental officials. It
applies to communications preliminary to a proposed judicial proceeding, such as a
demand letter from an attorney to a potential adversary. (Lerette v. Dean Witter
Organization, Inc. (1976) 60 Cal.App.3d 573, 577.) “The litigation privilege is absolute;
it applies, if at all, regardless whether the communication was made with malice or the
intent to harm. [Citation.] . . . [A]pplication of the privilege does not depend on the
publisher’s ‘motives, morals, ethics or intent.’ [Citation.]” (Kashian v. Harriman (2002)
98 Cal.App.4th 892, 913 (Kashian).)
       “To be protected by the litigation privilege, a communication must be ‘in
furtherance of the objects of the litigation.’ [Citation.] . . . A prelitigation
communication is privileged only when it relates to litigation that is contemplated in
good faith and under serious consideration. [Citations.] [¶] The policy supporting the
litigation privilege is furthered only if litigation is seriously considered . . . ‘No public
policy supports extending a privilege to persons who attempt to profit from hollow
threats of litigation.’ [Citations.] [¶] Whether a prelitigation communication relates to
litigation that is contemplated in good faith and under serious consideration is an issue of
fact.” (Action Apartment Ass’n, Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232,
1251 (Action Apartment).) The applicability of the litigation privilege is a question of
law where there is no dispute regarding the operative facts. (Kashian, supra, 98
Cal.App.4th at p. 913.)
       “The litigation privilege is . . . relevant to the second step in the anti-SLAPP
analysis in that it may present a substantive defense a plaintiff must overcome to

                                               16
demonstrate a probability of prevailing. (See, e.g., Kashian[, supra,] 98 Cal.App.4th [at
pp.] 926-927 [Where plaintiff’s defamation action was barred by Civil Code section 47,
subdivision (b), plaintiff cannot demonstrate a probability of prevailing under the anti-
SLAPP statute]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th
777, 783-785 [Defendant’s prelitigation communication was privileged and trial court
therefore did not err in granting motion to strike under the anti-SLAPP statute].)”
(Flatley, supra, 39 Cal.4th at p. 323.)
       Plaintiffs argue that the Letter was not made judicially or in an administrative
proceeding or as part of a necessary prelitigation conference, meeting or other
communication. Instead, they argue the Letter had the sole, unprivileged purpose of
threatening plaintiffs in an attempt to make them surrender their claims to the Property.
Given the low burden of proof, plaintiffs’ argument is well-taken.
       Defendants’ success in the first prong of the anti-SLAPP analysis does not dictate
the results of the second prong. Although defendants were able to establish the letter was
not illegal extortion as a matter of law, this showing does not rule out all reasonable
probability that the Letter was extortionate, it merely establishes that defendants did not
concede extortion and the evidence of extortion was not conclusive. There are
unresolved factual issues regarding the quitclaim deed and ownership of the Property,
and the circumstances of the case leave room for the possibility that defendants did, in
fact, intend for the threat of criminal prosecution to force plaintiffs to abandon their legal
remedies for regaining the Property, in effect causing them to relinquish it.
       Likewise, defendants’ prima facie showing that the Letter was prelitigation
activity deserving of anti-SLAPP protection does not foreclose the possibility that the
Letter was not made in anticipation of litigation “contemplated in good faith and under
serious consideration.” Although they declared that they had retained counsel prior to
writing the Letter, James Burton did not employ counsel to write the Letter, but instead
wrote it himself. The Letter did not allude to civil litigation of any sort. It was
Berryhill’s response that threatened civil litigation, and plaintiffs brought the lawsuit. It
is arguable that defendants were not seriously considering litigation at the time James

                                              17
Burton wrote the letter, but instead attempting to extort plaintiffs by frightening them
with the threat of criminal prosecution.
       We conclude there are triable issues of fact regarding whether “‘imminent
litigation was seriously proposed and actually contemplated in good faith as a means of
resolving the dispute . . . .’” and whether defendants engaged in civil extortion. (Action
Apartment, supra, 41 Cal.4th at p. 1251.) Defendants did not defeat plaintiffs’ prima
facie showing of a probability that they will prevail on their extortion claim by invoking
the litigation privilege.


       Attorney Fees


       Section 425.16, subdivision (c) provides that where “a special motion to strike is
frivolous or is solely intended to cause unnecessary delay, the court shall award costs and
reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section
128.5.” A special motion to strike is frivolous if “‘any reasonable attorney would agree
such motion is totally devoid of merit.’ [Citation.]” (Decker v. U.D. Registry, Inc.
(2003) 105 Cal.App.4th 1382, 1392, superseded by statute on other grounds, as stated in
Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349.)
       We cannot conclude that defendants’ special motion to strike was totally devoid of
merit. Plaintiffs argue that an award of fees is supported because the Letter is extortion
as a matter of law, and because defendants cannot succeed under the first prong of the
anti-SLAPP analysis. They have not prevailed on either of these issues, and do not claim
that the motion was made to cause undue delay. There is no basis for an award of costs
and fees under the circumstances of this case.




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                                    DISPOSITION


      The order denying defendants James and Erika Burton’s anti-SLAPP motion is
affirmed. Costs on appeal are awarded in favor of plaintiffs Irene Berryhill and Aneka
Braxton.




             KRIEGLER, J.


We concur:




             MOSK, Acting P. J.




             BAKER, J.




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