(Los Angeles County Super. Ct. No. BC460750) APPEAL from an order of the Superior Court of Los Angeles County. Mary Ann Murphy, Judge.
The opinion of the court was delivered by: Chaney, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant Reed Hamzeh appeals from an order denying his anti-SLAPP motion and requiring him to pay plaintiff's attorney fees under Code of Civil Procedure section 425.16.*fn2 We affirm.
In May 2011, plaintiff Miguel Mendoza filed this action against attorney Reed Hamzeh, asserting causes of action for civil extortion, intentional infliction of emotional distress and unfair business practices. The lawsuit arises from a May 6, 2009 letter (the demand letter) Hamzeh sent to Mendoza while Hamzeh was representing a client named Guy Chow regarding a dispute between Chow and Mendoza. The dispute concerned Mendoza's employment as the manager of Chow's print and copy business.
The demand letter from Hamzeh to Mendoza begins: "As you are aware, I have been retained to represent Media Print & Copy ('Media'). We are in the process of uncovering the substantial fraud, conversion and breaches of contract that your client has committed on my client. . . . To date we have uncovered damages exceeding $75,000, not including interest applied thereto, punitive damages and attorneys' fees. If your client does not agree to cooperate with our investigation and provide us with a repayment of such damages caused, we will be forced to proceed with filing a legal action against him, as well as reporting him to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service regarding tax fraud, the Better Business Bureau, as well as to customers and vendors with whom he may be perpetrating the same fraud upon [sic]." The letter goes on to list Mendoza's alleged transgressions, including failure to pay Media's employees, sales taxes and bills.
In his complaint in this action, Mendoza asserts "Hamzeh's threat to report Mendoza to the California Attorney General, the Los Angeles District Attorney, and the Internal Revenue Service constitute[s] the crime of extortion under California law." As set forth above, based on the demand letter, Mendoza brought causes of action against Hamzeh for civil extortion, intentional infliction of emotional distress and unfair business practices.
In September 2011, Hamzeh filed his anti-SLAPP motion, asking the trial court to strike Mendoza's complaint on grounds the demand letter constitutes a protected litigation communication under the anti-SLAPP statute and Mendoza cannot establish a probability of prevailing on his claims because they are barred by the litigation and common interest privileges (Civ. Code, § 47, subds. (b) & (c)). Hamzeh argued he was entitled to attorney fees and costs under section 425.16, subdivision (c)(1).
On October 20, 2011, before filing an opposition to the anti-SLAPP motion, Mendoza's counsel sent a letter to Hamzeh's counsel stating his intention to seek an award of attorney fees under section 425.16, subdivision (c), on grounds the anti-SLAPP motion was frivolous or solely intended to cause unnecessary delay. Mendoza's counsel argued Hamzeh failed to cite in his anti-SLAPP motion the "controlling" California Supreme Court case, Flatley v. Mauro (2006) 39 Cal.4th 299, 305 (Flatley), holding settlement communications which constitute criminal extortion as a matter of law are not covered by the anti-SLAPP statute. Mendoza's counsel asserted "There is little doubt that Mr. Hamzeh committed extortion when he threatened to report my client to the California Attorney General, the Los Angeles District Attorney, the Internal Revenue Service, the Better Business Bureau, etc. unless my client agreed to pay all damages allegedly caused (which at the time of the letter was represented to be in excess of $75,000) and to cooperate with their investigation."
Hamzeh did not withdraw his anti-SLAPP motion so, on December 1, 2011, Mendoza filed his opposition to the motion and sought attorney fees. Hamzeh filed a reply brief arguing "Flatley is inapposite because Hamzeh did not commit a crime." (Capitalized and bold font omitted.)
After hearing oral argument, the trial court denied the anti-SLAPP motion, concluding the communication at issue was not covered by the anti-SLAPP statute based on the holding in Flatley, supra, 39 Cal.4th 299. The court awarded Mendoza $3,150 in attorney fees.*fn3