Tuesday, July 16, 2013

Malin v. Singer (Cal. Ct. App. - July 16, 2013)


Legal "pitbull" Marty Singer writes a demand letter to a restaurant owner on behalf of his client (a partner of the would-be defendant) and encloses a draft complaint.  Singer claims that the owner has been diverting funds from the restaurant, to the detriment of the client.  So far, a routine and entirely proper demand letter.

But then Singer ups the ante.

The demand letter (and draft complaint) then alleges that the defendant used some of the ill-gotten booty "to arrange sexual liaisons with older men, including Judge (X) a/k/a "Dad" (see enclosed photo)."

Hmmm.  I wonder why Singer included that part?  I don't recall that being an element of the tort.  Is it possible that portion of the letter and draft complaint was included for some other purpose?  Does the word "blackmail" (or the more technical legal word, "extortion") come to anyone's mind?

It certainly came to the mind of the defendant.  Which sued Singer, claiming precisely that.  (As well as illegally accessing his computer files and illegal wire tapping.)

By the way, to the degree it might help one judge Singer's intent, his letter also expressly says that while the draft complaint included blanks for the names of defendant's same-sex partners, "when the Complaint is filed with the Los Angeles Superior Court, there will be no blanks in the pleading."  Oh, and the draft complaint also alleges that the defendant liked to "live out fetish role play fantasies, while playing out (his) versions of a father/son and uncle/nephew relationship."  Another element of the crime of embezzlement, presumably.

Singer files an anti-SLAPP motion, which the trial court denies, holding that the letter constituted unprotected extortion under California Supreme Court precedent.

The Court of Appeal reverses.

Justice Suzukawa argues that there was nothing extortionate about threatening to reveal defendant's private sexual antics -- including a photo (!) of one of his partners -- unless he paid a substantial sum of money.  The Court of Appeal further claims that the exposure of these alleged incest fetishes would not "subject (defendant) to any more disgrace than the claim (by a business partner) that he was an embezzler."  Finally, the Court of Appeal holds that not only was the purported extortion protected by the anti-SLAPP statute, but is also immune from suit under the litigation privilege.


Blackmail is an admittedly difficult doctrinal concept, and innumerable smart people have tried in vain to figure out why people can (1) demand money, and (2) voluntarily reveal private facts, and yet cannot do both simultaneously.  Nonetheless, the Court of Appeal's failure to see through the thin veneer here is fairly striking.  If this is protected speech, I'm going to make my own demand letters a LOT more vivid going forward.  Including whatever slim links to the defendant's sexual practices when my creative mind can come up with.

Singer's still potentially on the hook for wiretapping, which isn't protected.  But the alleged extortion gets a categorical pass.  As well as an award of attorney's fees.