Flatley v. Mauro 9/2/04 CA2/5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B171570

Case Date: 09/02/2004

Preview:Filed 09/2/04

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FIVE MICHAEL FLATLEY, Plaintiff and Respondent, v. D. DEAN MAURO, Defendant and Appellant. B171570 (Los Angeles County Super. Ct. No. BC291551)

APPEAL from an order of the Superior Court of Los Angeles County, Richard C. Hubbell, Judge. Affirmed. Sedgwick, Detert, Moran & Arnold, James J.S. Holmes, Douglas J. Collodel, and Wendy L. Wilcox, for Defendant and Appellant. Greenberg Glusker Fields Claman Machtinger & Kinsella, Bertram Fields, and Ricardo P. Cestero, for Plaintiff and Respondent.

I. INTRODUCTION Defendant, D. Dean Mauro, who is an attorney, appeals from an order denying his special motion to strike, pursuant to Code of Civil Procedure1 section 425.16, the second amended complaint for civil extortion, intentional infliction of emotional distress, and wrongful interference with perspective economic advantage brought by plaintiff, Michael Flatley. The complaint was filed two days after Mr. Mauro, on behalf his client co-defendant, Tyna Marie Robertson, commenced litigation in Illinois against plaintiff. Ms. Robertson is not a party to this appeal. Mr. Mauro argues the trial court should have granted the special motion to strike because the second amended complaint alleges harm that results from the protected activity of proposing settlement of a disputed claim on behalf of Ms. Robertson. Further, Mr. Mauro argues his conduct was absolutely privileged as prelitigation communications pursuant to Civil Code section 47, subdivision (b). We disagree and affirm the order denying the special motion to strike. The trial court properly ruled the pre-litigation attempt to extort money in exchange for silence is not the proper subject of a special motion to strike. II. BACKGROUND A. Initially Filed Pleading Plaintiff filed a complaint for civil extortion, defamation, fraud, intentional infliction of emotional distress, and wrongful interference with prospective economic advantage on March 6, 2003. Named as defendants were Mr. Mauro and Ms. Robertson. Mr. Mauro was not named in the defamation and fraud causes of action. On March 27, 2003, plaintiff filed a first amended complaint. On April 18, 2003, defendant Mauro

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demurred to and moved to strike the first amended complaint. On May 29, 2003, the trial court overruled the demurrer to the civil extortion and emotional distress claims. The trial court sustained with leave to amend the demurrer to the tortious interference claim. B. The Second Amended Complaint Plaintiff filed a second amended complaint on June 5, 2003. The second amended complaint alleges that plaintiff is a resident of Ireland and a well known performer and entertainment entrepreneur. Defendants are Illinois residents, who allegedly intentionally communicated about plaintiff to and from California. Plaintiff alleged he met Ms. Robertson in Las Vegas, Nevada prior to October 2002. The second amended complaint further alleged that at the time they met and unbeknownst to plaintiff: Ms. Robertson was an ex-stripper with a gambling habit that had led to her seeking the protection of the bankruptcy courts; Ms. Robertson had been sued for charging over $460,000 of personal items to a company credit card and passing dishonored checks; and Ms. Robertson had extorted money and other financial benefits from men. Plaintiff employed a private secretary, Thomas Trautmann.2 Plaintiff gave Ms. Robertson Mr. Trautmann's telephone number. During October 2002, Ms. Robertson telephoned Mr. Trautmann. Mr. Trautmann arranged for plaintiff to come to Las Vegas on October 19, 2002. Ms. Robertson arrived at plaintiff's two bedroom suite in the Venetian Hotel in Las Vegas. At that time, Ms. Robertson was told that one of the bedrooms was occupied by plaintiff and the other by Mr. Trautmann. Ms. Robertson did not request separate accommodations. Plaintiff and Ms. Robertson had dinner together All further statutory references are to the Code of Civil Procedure unless otherwise indicated. 2 Mr. Trautmann's role as plaintiff's private secretary is referred to throughout the second amended complaint. However, Mr. Trautmann's actual name is never mentioned in the second amended complaint; it first arose in plaintiff's special motion to strike opposition. For purposes of clarity, when describing the allegations of the second amended complaint, we will refer to Mr. Trautmann by his name. 3
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and returned to his suite. The two went directly to plaintiff's bedroom. Ms. Robertson allegedly went into plaintiff's bathroom, subsequently reappeared in the nude, and then climbed into bed with him. It was alleged that Ms. Robertson voluntarily spent the night with plaintiff. The next morning Ms. Robertson kissed plaintiff in the presence of Mr. Trautmann. Plaintiff and Ms. Robertson then had breakfast together in the suite. When Ms. Robertson subsequently left for the airport on the morning of October 20, 2002, she kissed plaintiff and said she hoped to see him again soon. Twenty-five days later, on November 14, 2002, Ms. Robertson telephoned the Las Vegas police and falsely accused plaintiff of raping her on the night of October 19, 2002. According to the second amended complaint, Ms. Robertson stated that she called the police because she wanted to make "a record." The authorities took no action in response to Ms. Robertson's November 14, 2002, telephone call. In January 2003, Mr. Mauro, Ms. Robertson's lawyer, sent a letter to a "corporate service" in Carson City, Nevada. A copy of the letter was sent to plaintiff's counsel in Los Angeles. The letter alleged plaintiff had sexually assaulted Ms. Robertson. The letter indicated that Ms. Robertson reported the incident to the police and demanded that plaintiff make a substantial payment. The letter warned that, if payment was not made, the information concerning the alleged rape would be turned over to state, local, and federal authorities for criminal prosecution. The letter also warned that, in the absence of a payment, Ms. Robertson would issue a press release to numerous named media sources throughout the world. In January 2003, in three separate telephone conversations with plaintiff's lawyers in Los Angeles, Mr. Mauro threatened to "go public" with Ms. Robertson's sexual assault claim if plaintiff did not make a "sufficient" payment to satisfy Ms. Robertson. Defendants are alleged to have made the threats as part of a pattern and practice of Ms. Robertson to extort payments and other economic benefits from men with whom she has had sexual liaisons. The threats are alleged to have not been made in connection with a proceeding contemplated in good faith or to achieve a bona fide purpose in litigation but

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in furtherance of a scheme to profit by extorting money. After plaintiff refused to pay anything, Ms. Robertson filed a civil complaint in Illinois and then made false and defamatory statements about him on television and other media outlets that he had raped her. On July 3, 2003, Mr. Mauro answered the second amended complaint. C. The Special Motion to Strike 1. The Moving Papers On August 1, 2003, Mr. Mauro filed a special motion to strike pursuant to section 425.16. In support of the motion, Mr. Mauro declared that on January 2, 2003, he mailed a letter to plaintiff which contained a draft of a Cook County unfiled proposed complaint for sexual assault and intentional infliction of emotional distress. The draft copy of the proposed pleading indicated Mr. Mauro expected to file the pleading in Cook County Circuit Court. The letter also included a biographical information sheet and the curriculum vitae of each of the witnesses retained to offer testimony on behalf of Ms. Robertson. The January 2, 2003, letter provides in part: "Please be advised that we represent a women[sic] with whom you engaged in forcible sexual assault on or about October 1920, 2003. Please consider this our first, and only, attempt to amicably resolve this claim against all Defendants named in the Complaint at Law enclosed herein. . . . [

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