Filed 2/28/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

MARK GERAGOS et al.,

Cross-complainants and 

Appellants,

v.

ARMEN ABELYAN et al.,

Cross-defendants and 

Respondents.

B310636

(Los Angeles County

Super. Ct. No. 19STCV40558)

APPEAL from an order of the Superior Court of Los

Angeles County, Barbara M. Scheper, Judge. Affirmed.

Dhillon Law Group, Krista L. Baughman and Harmeet K. 

Dhillon for Cross-complainants and Appellants.

Affeld Grivakes, Damion D. D. Robinson; Law Offices of 

Elliott N. Tiomkin and Elliott N. Tiomkin for Cross-defendants 

and Respondents.

_________________________
2

INTRODUCTION

With new counsel, a client sues his former attorneys, 

alleging they accepted $27,500 in fees from him but did not 

perform the promised legal services. New counsel engages in 

communications via email and telephone with the former 

attorneys’ representative and discusses the possible filing of a 

State Bar claim. The former attorneys file a cross-complaint 

against the client and his new counsel for extortion, among other 

claims. The client and his new counsel file an anti-SLAPP 

motion, which the trial court grants.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

I. Events Leading to Filing of Civil Complaint

From 2007 to 2011, Armen Abelyan (Abelyan) was a 

revenue agent with the IRS. In September 2011, he began 

training as a special agent. Prior to receiving his formal 

commission as a special agent, Abelyan received a traffic ticket 

and tried to use his status as a special agent “to get out of the 

ticket” both at the time of citation and during his traffic court 

appearance.

In 2014, Abelyan was charged with perjury and attempted 

impersonation of a public officer in Los Angeles Superior Court 

case No. BA430254-01, People v. Abelyan. The prosecution 

argued Abelyan “lied about being a Special Agent and falsely 

impersonated a public officer in trying to get out of the ticket.” 

Initially, Abelyan represented himself in the case, but realized he 

needed a lawyer for trial.
3

On November 19, 2015, Abelyan paid $2,500 for a 

consultation with Setara Qassim (Qassim) and Mark Geragos 

(Geragos) of the firm Geragos & Geragos (Geragos Firm). The 

consult lasted less than 15 minutes. They “agreed to take [the] 

case and requested an additional $25,000.” That same day, 

Abelyan paid and signed a retainer agreement, which included 

the following relevant provisions: “This letter will serve as 

confirmation that the [Geragos Firm] will represent you related 

to the matter pending against you in Clara Shortridge Foltz 

Criminal Justice Center, Department 114.” “You retain and 

employ our firm to represent you in the matter referenced above. 

Our firm shall charge you a flat fee of $25,000.00 for 

investigation only. If you wish that our firm be substituted in as 

counsel of record, a new retainer agreement will need to be 

negotiated.” “Said FEE is a FLAT FEE which covers not only the 

legal services to be rendered but also secures the FIRM’S 

representation and reputation to assist you with this matter. A 

FLAT FEE is not based upon actual time spent on the case or the 

number of hours billed, but covers services that might be greater 

or lesser than the average for this type of case.” (Boldface 

omitted.) Geragos and Qassim assured Abelyan he “had nothing 

to worry about and that an attorney would show up the next day 

at trial.”

The next day, on November 20, 2015, Abelyan waited 

outside the courthouse but no one from the Geragos Firm showed 

up. Abelyan called Qassim multiple times but she did not 

respond. Abelyan went into court by himself and discovered the 

judge had issued a bench warrant for not timely appearing at 

trial. He represented himself for the remainder of the trial, 

which resulted in a hung jury.
4

Abelyan contacted the Geragos Firm again and was 

instructed by Qassim to “wait and see” whether the prosecutor 

retried the case. When the charges were refiled, neither Qassim 

nor Geragos (nor anyone else from the Geragos Firm) provided 

services on Abelyan’s behalf. Abelyan had exhausted his funds to 

pay the Geragos Firm and had no choice but to proceed with 

appointed counsel. Abelyan was convicted in the retrial and 

sentenced to four days in jail and probation.

Following the retrial, Abelyan contacted the Geragos Firm 

(and Geragos directly) several times and requested a refund of 

the retainer because they failed to provide any services.

On November 18, 2016, Abelyan sent a letter to Geragos, 

which provides in relevant part: “Mr. Geragos, I ask that you 

refund me the $25,000 retainer I paid on November 19, 2015.” 

Qassim “sensed desperation in me, . . . saw the money and took 

it. But she took it knowing she was never going to represent me. 

She never asked for any documents and I didn’t see her till weeks

after my [first] trial . . . . The DA did re-file, but [Qassim] was 

elusive. My phone calls were not returned. Out of options, I was 

assigned [appointed counsel].” “After the second trial ended . . . I 

came to the lobby repeatedly and demanded to see you.” The 

downstairs sign-in record shows “how many times I’ve been in the 

lobby asking to see you or [Qassim]. There must be a record of 

. . . two dozen calls and voicemails. I was given a runaround of a 

year.” “I am not trying to argue a contract with one of the most 

powerful attorneys in L.A., but consider the circumstances and 

the first sentence” of the retainer, which provides the Geragos 

Firm “ ‘will represent you related to the matter pending against 

you.’ ” At our meeting, you “calmed me down, you made me feel 

safe. Well worth the $2,500, but the $25,000 wasn’t earned. 
5

There was no representation or investigation or intent ever to do 

either.” “I know $25,000 isn’t a lot of money to you or the firm, 

but to me right now it will make all the difference. . . . Please 

refund the $25,000.” The money was not refunded.

Abelyan reported the Geragos Firm to a number of bar 

organizations. He also retained Elliott N. Tiomkin of the Law 

Offices of Elliott N. Tiomkin (Tiomkin) to recover the retainer 

from the Geragos Firm.

On November 8, 2019, Abelyan filed a civil complaint 

against Geragos, Qassim, and the Geragos Firm (collectively, the 

Geragos Parties) for breach of contract, promissory fraud, and 

unlawful business practices (per Bus. & Prof. Code, § 17200). 

The record on appeal does not contain a copy of Abelyan’s 

complaint.

II. Cross-Complaint

On August 21, 2020, the Geragos Parties, represented by 

Greg Kirakosian (Kirakosian), filed a cross-complaint against 

Abelyan, Tiomkin, and his firm, asserting five causes of action: 

(1) civil extortion, (2) conspiracy to commit extortion, 

(3) negligence, (4) intentional infliction of emotional distress, and 

(5) violation of Business and Professions Code section 17200. The 

cross-complaint alleged the following:

On August 13, 2020, Kirakosian emailed Tiomkin to meet 

and confer regarding the Geragos Firm’s intention to file a 

demurrer, a motion to strike Abelyan’s complaint, and a motion 

for sanctions. Tiomkin responded that same day, “making 

additional frivolous claims . . . while simultaneously raising the 

issue of State Bar violations against the Geragos Firm.”

The next day, on August 14, 2020, Kirakosian called 

Tiomkin. Tiomkin “was uninterested in conducting a meet and 
6

confer and . . . only discuss[ed] the immediate filing of a State 

Bar complaint against the Geragos Firm.” Kirakosian requested 

that Tiomkin “refrain from making such veiled threats.” The 

conversation ended when Tiomkin stated the Geragos Firm 

should return the $27,500 back to Abelyan “or Abelyan would be 

immediately filing a State Bar complaint.” Kirakosian then 

emailed and informed Tiomkin “all future phone conversations 

must be conducted with the presence of a certified court 

reporter.”

On August 18, 2020, Tiomkin “directly . . . contacted 

Alexandra Kazarian of the Geragos Firm” to discuss the case, in 

violation of Rule 4.2 of the California Rules of Professional 

Conduct.1 Alexandra Kazarian (Kazarian) is described in the 

cross-complaint as “an internal colleague” of the Geragos Firm

and “a representative of the Geragos Firm.” According to 

Kazarian, Tiomkin made the following “settlement proposal” four 

times during their telephone call: “ ‘If the Geragos [F]irm pays 

$27,500.00, he will not report the matter to the State Bar and the 

case would be dismissed with confidentiality.’ ”

Based on the foregoing, the first cause of action in the 

cross-complaint alleged Tiomkin and Tiomkin’s Firm “made 

1 Rule 4.2(a) of the Rules of Professional Conduct provides: 

“In representing a client, a lawyer shall not communicate directly 

or indirectly about the subject of the representation with a person 

the lawyer knows to be represented by another lawyer in the 

matter, unless the lawyer has the consent of the other lawyer.” 

(Cal. Rules of Prof. Conduct, rule 4.2(a).)

Further undesignated rule references are to the California 

Rules of Professional Conduct.
7

repeated attempts to extort funds from the Geragos Firm on 

Abelyan’s behalf.” By “means of threats to present disciplinary 

charges in exchange for the immediate payment of $27,500.00,” 

Tiomkin violated Rule 3.10 and Penal Code section 524.2 The 

second cause of action alleged Abelyan, Tiomkin, and Tiomkin’s 

Firm “actively participated with each other in a plan to extort 

funds” from the Geragos Parties “based on false and baseless 

claims as well as threats of complaints to the State Bar.”

The third cause of action alleged Abelyan, Tiomkin, and his 

firm “breached the duty of care owed” to the Geragos Parties and

“caused [the Geragos Parties] to suffer injuries.” The fourth

cause of action alleged Abelyan and Tiomkin “knew” Abelyan’s 

claims against the Geragos Parties were “not only false, but were 

fabricated and used to make unlawful threats of State Bar 

violations in an effort to extort the Geragos Firm.” Their 

“unlawful and criminal conduct was extreme and outrageous” 

and could “disrupt the Geragos Firm’s reputation and business.”

The fifth cause of action alleged Tiomkin and his firm 

violated Business and Professions Code section 17200 when 

Tiomkin “used his position as an attorney to attempt to file false 

claims against [the Geragos Parties] and threatened them with 

false and malicious complaints . . . to the State Bar . . . if they did 

2 Rule 3.10(a) provides: “A lawyer shall not threaten to 

present criminal, administrative, or disciplinary charges to 

obtain an advantage in a civil dispute.”

Penal Code section 524 provides: “Every person who 

attempts, by means of any threat, . . . to extort property or other 

consideration from another is punishable.”
8

not pay his client tens of thousands of dollars.” Tiomkin knew 

the Geragos Parties had legal representation, yet he contacted 

Kazarian “in an attempt to circumvent [Kirakosian] and extort 

[the Geragos Parties] directly.”

The Geragos Parties sought general damages, special

damages, punitive and exemplary damages, attorney fees and 

costs.

III. Special Motions to Strike the Cross-Complaint

Abelyan, Tiomkin, and his firm filed special motions to 

strike3 the Geragos Parties’ cross-complaint as a strategic lawsuit 

against public participation under the anti-SLAPP statute, Code 

of Civil Procedure section 425.16.4 They argued the causes of 

action in the cross-complaint arise out of “privileged litigation 

conduct” in connection with Abelyan’s civil complaint and 

settlement discussions, and as such, the claims should be 

stricken under section 425.16. They also argued the Geragos 

Parties cannot demonstrate a probability of prevailing on their 

claims because the litigation privilege per Civil Code section 47 

applies. Their motions included a request for attorney fees and 

costs per section 425.16, subdivision (c). Supporting declarations 

of Abelyan and Tiomkin, as well as various exhibits, were filed 

also.

3 Tiomkin filed an anti-SLAPP motion on September 30, 

2020, and Abelyan filed a nearly identical anti-SLAPP motion on 

October 8, 2020.

4 Undesignated statutory references are to the Code of Civil 

Procedure.
9

Abelyan’s declaration iterated the information included in 

part I above, entitled “Events Leading to Filing of Civil 

Complaint.”

Tiomkin’s declaration provided:

Before filing suit on Abelyan’s behalf, Tiomkin attempted to 

resolve the matter with the Geragos Firm and had discussions 

with Kirakosian and Kazarian, “who purported to represent the 

Geragos Firm and Mark Geragos.” Throughout these 

discussions, “Kirakosian acted as the ‘bad cop,’ taking a very 

aggressive approach that the Geragos Firm had no possible 

liability” while “Kazarian appeared more willing to engage in a 

reasonable discussion and potentially to resolve the matter.” 

Neither ever suggested that Tiomkin should not contact Kazarian 

or should deal only with Kirakosian.

On August 13, 2020, Tiomkin received a “meet and confer” 

letter from Kirakosian—providing notice of the Geragos Parties’ 

intent to file a demurrer and motion to strike Abelyan’s 

complaint and threatening to seek sanctions against Abelyan and 

Tiomkin personally. Kirakosian’s letter, attached as an exhibit, 

characterized Abelyan’s complaint as “fraudulent” and 

“frivolous.” Kirakosian’s letter urged Tiomkin to refer to 1) the 

Geragos Firm’s retainer agreement signed by Abelyan on 

November 19, 2015, and 2) Abelyan’s November 18, 2016 letter to 

Geragos—both of which were attached as exhibits.

At no point during the discussions held August 13 and 14, 

2020 did Tiomkin threaten to report the Geragos Parties to the 

State Bar or to pursue State Bar proceedings against them. 

Kirakosian and Tiomkin “did discuss Mr. Geragos’ history of 

State Bar investigations relating to similar conduct—i.e., taking 

client funds without performing services.” Tiomkin “believed 
10

these investigations would be relevant to show a pattern and 

practice” and “intend[ed] to seek information about these 

investigations in discovery.” Kirakosian, however, refused to 

discuss any State Bar-related investigations into the Geragos 

Firm. Email communications between Tiomkin and Kirakosian 

were attached as exhibits.

Given Kirakosian’s “antagonistic tone,” Tiomkin contacted 

Kazarian on August 18, 2020 to ascertain “whether she would 

still be amenable to trying to resolve this matter.” Kazarian “at 

no point suggested that she could not talk . . . about the case, or 

that [Tiomkin] should talk with [Kirakosian].” Tiomkin “did not 

threaten a State Bar complaint or proceeding during [his] 

conversation” with Kazarian. At some point, Kazarian “stepped 

away for a few minutes, stating that she wanted to consult with 

another attorney” and upon her return, “immediately and 

repeatedly brought up the possibility of a State Bar complaint 

and asked whether [Abelyan and Tiomkin] were planning to file 

one.” Tiomkin advised that they “had not decided at that point.” 

Kazarian told Tiomkin “in no uncertain terms that if [they] were 

going to settle this case, the settlement would have to include an 

agreement that [Abelyan and Tiomkin] would not report to the 

State Bar.” Tiomkin told Kazarian that he did not think they 

“could validly agree to refrain from reporting attorney 

misconduct, and likely could not make this a part of a settlement 

agreement.” Kazarian brought up State Bar proceedings “at least 

three times” during this conversation, “all following the break in 

[their] conversation.” Tiomkin’s “only mention of a potential 

State Bar proceeding was in response to [Kazarian’s] direct 

questions.”
11

IV. Opposition to the Special Motions to Strike

On October 29, 2020, the Geragos Parties filed an 

opposition to the special motions to strike. They argued 

extortionate conduct is not protected by the anti-SLAPP statute 

and relied on Rule 3.10 and the exception established in Flatley v. 

Mauro (2006) 39 Cal.4th 299 (Flatley) in support. They argued 

case law “make abundantly clear that Flatley should not be read 

to be limited to . . . only ‘specific and extreme circumstances’ of 

extortion” and that “veiled or ‘less than explicit’ threats . . . did 

not prevent the Flatley exception from applying and would not 

make the conduct protected.” They contend Tiomkin’s “explicit 

threats of State Bar complaints are completely unrelated to the 

underlying claims in the Complaint.” They also contend that 

admissible evidence, i.e., a partial audio recording (and 

transcript) by Kazarian of her telephone conversation with 

Tiomkin, “conclusively demonstrates extortion as a matter of 

law.” Finally, the Geragos Parties argue the litigation privilege 

did not apply to Tiomkin’s statements to Kazarian, and that they 

can establish a probability of prevailing on the merits of their 

causes of action.

Supporting the opposition to the anti-SLAPP motion were 

the declarations of Geragos, Qassim, Kazarian, and Kirakosian.

Geragos’s declaration provides: Kirakosian informed 

Geragos that Tiomkin “made repeated statements concerning 

State Bar complaints against [Geragos] as well as other repeated 

statements that [he] would be in custody soon.” Geragos had “not 

retained the services of [Kazarian] in connection to this matter 

nor [had he] ever requested or authorized her to speak with 

[Tiomkin] on [his] behalf.” Geragos learned from Kazarian that 

Tiomkin “repeated his threats to report [Qassim] and [him] to the 
12

State Bar if [they] did not immediately pay [Abelyan] 

$27,500.00.” Geragos “felt extreme embarrassment” that 

Tiomkin contacted “a fellow colleague who had zero involvement 

in this dispute to discuss State Bar complaints against [him].” 

He “began having difficulty sleeping” and became “nervous, 

worried and anxious . . . because [he] believed . . . Tiomkin and 

[Abelyan] would attempt to fabricate false criminal charges and 

file a frivolous State Bar complaint against [him] in order to 

obtain a settlement.” Geragos subsequently learned that 

Abelyan’s and Tiomkin’s “extortion had been completed and [had] 

indeed made the false allegations against [him] and [Qassim] to 

the State Bar.”

Qassim’s declaration repeats the statements from, and is 

nearly identical to, Geragos’s declaration.

Kirakosian’s declaration includes as exhibits a copy of 

email communications from Tiomkin and a transcript of the 

audio recording of Kazarian’s phone conversation with Tiomkin. 

The declaration and exhibits provide: On August 13, 2020, 

Kirakosian emailed Tiomkin to meet and confer regarding the 

Geragos Parties’ intention to file a demurrer and motion to 

strike. In response, Tiomkin “raised the issue of State Bar 

violations” and requested “documents concerning relevant State 

Bar investigations of [Geragos] and his associates pertaining to 

his theft of client funds.” Tiomkin’s emails also stated, “I hope 

Mr. Geragos is staying well. Has he managed to remain out-ofcustody,” and referred to Geragos’s recent “indictment as an 

unnamed co-conspirator in the Avenatti case.” Tiomkin wrote 

that the fee agreement “violates multiple State Bar rules” and 

requested that Kirakosian “should familiarize [himself] with the 

State Bar’s position on true retainers.” During Kirakosian’s 
13

phone call with Tiomkin on August 14, 2020, Tiomkin 

“unequivocally stated that his client would be filing a State Bar 

complaint if the matter wasn’t promptly resolved.” Kirakosian 

emailed Tiomkin and memorialized their phone conversation, to 

which Tiomkin replied that Kirakosian had “mischaracterized the 

conversation in its entirety.” On August 18, 2020, Kirakosian 

was informed by Kazarian that Tiomkin reached out to her 

directly to discuss the case. Kazarian told Kirakosian about 

Tiomkin’s “settlement proposal”—“If the Geragos Firm pays 

$27,500.00, [Tiomkin] will not report the matter to the State Bar 

and the case would be dismissed.” Kirakosian told Kazarian that 

the settlement proposal “mirrors the threats” Tiomkin made to 

Kirakosian during their previous communications. Kazarian told 

Kirakosian she recorded the phone conversation and gave him 

the recording.

Kazarian’s declaration provides: On August 18, 2020, she 

received “an unsolicited call” from Tiomkin wanting to discuss 

Abelyan’s claims. Prior to this phone call, Kazarian had never 

spoken to Tiomkin about Abelyan’s case. Tiomkin informed 

Kazarian he “had just seen [her] recent post on the Los Angeles 

County Bar Association’s criminal list serve in which [she] 

recommended the Geragos Firm to another attorney.” Tiomkin 

told Kazarian he “was not contacting [her] in [her] capacity as an 

attorney for the Geragos Parties, but merely as a colleague of 

[Geragos] to relay a settlement offer directly to [Geragos] as his 

previous attempts to resolve the matter with [Kirakosian] had hit 

a ‘dead-end.’ ” Tiomkin informed Kazarian that Abelyan had not 

yet filed a State Bar complaint and would settle and refrain from 

doing so if the Geragos Parties pay $27,500.00. “As an 

experienced criminal defense attorney, [Kazarian] reasonably 
14

believed that [Tiomkin] was in the commission of criminal 

extortion.” She placed Tiomkin on hold and informed Kirakosian 

of Tiomkin’s call. She then resumed her call with Tiomkin and 

“legally record[ed] the conversation” to obtain evidence related to 

the crime of extortion. She confirmed Tiomkin’s “previous 

unrecorded statement” that Abelyan would not file a State Bar 

complaint if the Geragos Parties returned the $27,500.00 

retainer. Tiomkin told her he “didn’t know how he could formally 

put this term into a written settlement agreement, because such 

a term would not be allowed.” Tiomkin thereafter began 

discussing the merits of the underlying case. “For unknown 

reasons, the recording briefly stopped and [she] immediately 

placed [Tiomkin] on hold. [She] immediately began recording 

again and continued [her] conversation with [Tiomkin].” She 

then provided the recording to Kirakosian.

V. Reply and Evidentiary Objections

Tiomkin concurrently filed a reply and evidentiary 

objections to portions of the declarations of Geragos, Qassim, 

Kirakosian, and Kazarian, as well as to some of the exhibits filed 

in support of the opposition, including the transcript of the audio 

recording.

In his reply, Tiomkin argues the Geragos Parties’ crosscomplaint “is intended purely to gain leverage by turning 

opposing counsel into a co-defendant.” He argues there is no 

violation of Rule 4.2 and refers to the Geragos Parties’ crosscomplaint which expressly describes Kazarian as “of the Geragos 

Firm.” Tiomkin also argues the Geragos Parties are required to 

show criminal extortion as a matter of law for the Flatley

exception to apply and failed to do so. The reply characterizes 

the transcript of the audio recording as “partial, selective 
15

excerpts” and argues the secret recording is illegal and 

inadmissible: “[l]awyers are not allowed to record each other to 

gain advantage in civil cases.” Tiomkin further argues even if 

“these allegations are believed, stating that a client is unlikely to 

pursue legal remedies if a case settles is a far cry from criminal 

extortion.” Tiomkin contends Abelyan “had an absolute right to 

report the Geragos Parties to the State Bar for mishandling 

client funds. Merely implying that Abelyan might file a justified 

State Bar complaint is not a criminal threat.”

Abelyan filed a reply incorporating by reference the 

evidentiary objections and reply arguments by Tiomkin.

VI. Trial Court’s Ruling

On December 10, 2020, after argument, the trial court 

granted both special motions to strike in their entirety. The 

court sustained Tiomkin’s objections to the evidence attached to 

Kirakosian’s declaration, “consisting of edited, partial recordings 

of a phone call secretly taken by” Kazarian without Tiomkin’s 

consent and found the recording and its transcript inadmissible.

As to the first prong, the court found “it is clear that the 

allegations in the cross-complaint . . . depend upon a ‘written or 

oral statement . . . made in connection with an issue under 

consideration or review by a . . . judicial body, or any other official 

proceeding authorized by law.’ ” All communicative acts 

performed by attorneys as part of their representation of a client 

in a judicial proceeding “ ‘are per se protected’ ” and “settlement 

negotiations are ‘protected activity.’ ” The court further found 

the Geragos Parties’ evidence is “not sufficient to meet the high 

burden of producing conclusive evidence of illegal activity, and 

thus [the] narrow exception [per Flatley] does not apply.”
16

As to the second prong, the court found Malin v. Singer

(2013) 217 Cal.App.4th 1283 (Malin) dispositive and the “Civil 

Code section 47 litigation privilege applies as a matter of law.” 

The court found the “entirety of the allegations in the crosscomplaint and the gravamen of each cause of action is related to 

litigation-related communications.” It ruled the Geragos Parties 

cannot demonstrate a probability of prevailing on their causes of 

action.

Lastly, the trial court found Abelyan, Tiomkin, and the 

Tiomkin firm “are entitled to recover their fees and costs as 

established in a properly noticed motion.”

The Geragos Parties timely appealed.

DISCUSSION

I. Standard of Review

We review a trial court’s ruling on a special motion to 

strike pursuant to section 425.16 under the de novo standard. 

(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788; 

Park v. Board of Trustees of California State University (2017) 

2 Cal.5th 1057, 1067 (Park).) “In other words, we employ the 

same two-pronged procedure as the trial court in determining 

whether the anti-SLAPP motion was properly granted.” 

(Mendoza v. ADP Screening & Selection Services, Inc. (2010) 

182 Cal.App.4th 1644, 1652.)

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).) In considering the pleadings and 

declarations, we do not make credibility determinations or 

compare the weight of the evidence; instead, we accept the 

opposing party’s evidence as true and evaluate the moving party’s 
17

evidence only to determine if it has defeated the opposing party’s 

evidence as a matter of law. (Soukup v. Law Offices of Herbert 

Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).)

As for the trial court’s rulings on evidentiary objections, we

apply the abuse of discretion standard. (Daimler Trucks North 

America LLC v. Superior Court (2022) 80 Cal.App.5th 946, 960.) 

An erroneous evidentiary ruling requires reversal only if there is 

a reasonable probability that a result more favorable to the 

appealing party would have been reached in the absence of the 

error. (Ibid.)

II. Applicable Law

A. The Anti-SLAPP Statute

Section 425.16 provides: “A cause of action against a person 

arising from any act of that person in furtherance of the person’s 

right of petition . . . 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.” (§ 425.16, subd. (b)(1).) An “ ‘act in furtherance of a

person’s right of petition or free speech . . . in connection with a

public issue’ ” is defined in section 425.16 to include, in relevant 

part: (1) “any written or oral statement or writing made before a 

legislative, executive, or judicial proceeding, or any other official 

proceeding authorized by law”; (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”; or (3) “any other conduct 

in furtherance of the exercise of the constitutional right of 

petition . . . .” (Id., subd. (e).)
18

The Legislature enacted section 425.16 to prevent and 

deter “lawsuits brought primarily to chill the valid exercise of the 

constitutional rights of freedom of speech and petition for the 

redress of grievances.” (§ 425.16, subd. (a).) The purpose of the 

anti-SLAPP law is “not [to] insulate defendants from any liability 

for claims arising from the protected rights of petition or speech. 

It only provides a procedure for weeding out, at an early stage, 

meritless claims arising from protected activity.” (Baral v. 

Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) To accomplish this 

purpose, the Legislature expressly specifies the statute “be 

construed broadly.” (§ 425.16, subd. (a).)

When a party moves to strike a cause of action under the 

anti-SLAPP law, a trial court evaluates the special motion to 

strike using a two-prong test: (1) has the moving party “made a 

threshold showing that the challenged cause of action arises from 

protected activity” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 

1056 (Rusheen)); and, if it has, (2) has the non-moving party 

demonstrated that the challenged cause of action has “minimal 

merit” by making “a prima facie factual showing sufficient to 

sustain” a judgment in its favor? (Baral, supra, 1 Cal.5th at 

pp. 384–385; Navellier v. Sletten (2002) 29 Cal.4th 82, 93–94 

(Navellier); see also § 425.16, subd. (b)(1)). After the first prong 

is satisfied by the moving party, “the burden [then] shifts to the 

[non-moving party] to demonstrate that each challenged claim 

based on protected activity is legally sufficient and factually 

substantiated.” (Baral, at p. 396.)

B. Crime of Extortion, Generally

Extortion is not a constitutionally protected form of speech. 

(Flatley, supra, 39 Cal.4th at p. 328.)
19

The Penal Code defines extortion to include “the obtaining 

of property or other consideration from another, with his or her 

consent, . . . induced by a wrongful use of force or fear.” (Pen. 

Code, § 518, subd. (a).) Fear, for purposes of extortion, “may be 

induced by a threat of any of the following: [¶] (1) To do an 

unlawful injury to the person or property of the individual 

threatened or of a third person. [¶] (2) To accuse the individual 

threatened, or a relative of his or her, or a member of his or her 

family, of a crime. [¶] (3) To expose, or to impute to him, her, or 

them a deformity, disgrace, or crime. [¶] (4) To expose a secret 

affecting him, her, or them. [¶] (5) To report his, her, or their 

immigration status or suspected immigration status.” (Pen. 

Code, § 519.) “Only threats that fall within one of these [five] 

categories of section 519 [constitute] extortion.” (People v. 

Umana (2006) 138 Cal.App.4th 625, 639; see Malin, supra, 

217 Cal.App.4th at p. 1299 [demand letter did not fall within

Flatley exception where it did not fall within any of the § 519

categories].) Every person who, with intent to extort any money 

or other property from another, sends or delivers to a person any 

letter or other writing, whether subscribed or not, expressing or 

implying, or adapted to imply, any threat as 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.)

“Extortion has been characterized as a paradoxical crime in 

that it criminalizes the making of threats that, in and of 

themselves, may not be illegal. ‘[I]n many blackmail cases, the 

threat is to do something in itself is perfectly legal, but that 

threat nevertheless becomes illegal when coupled with a demand 

for money.’ ” (Flatley, supra, 39 Cal.4th at p. 326.) Additionally, 
20

“threats to do the acts that constitute extortion under Penal Code 

section 519 are extortionate whether or not the victim committed 

the crime or indiscretion upon which the threat is based and 

whether or not the person making the threat could have reported 

the victim to the authorities or arrested the victim.” (Id. at 

p. 327.)

III. Prong 1: Arising from Protected Activity

The Geragos Parties argue the trial court improperly found 

that Tiomkin’s extortion attempts, on behalf of Abelyan, 

constituted conduct taken in furtherance of their right of petition 

and “[i]n so finding, . . . improperly sustained an objection to [the 

Geragos Parties’] uncontroverted, admissible evidence that 

conclusively established the complained-of illegal extortion.”

We conduct our review de novo.

Step one of the anti-SLAPP analysis requires us to decide 

whether the moving parties—here, Abelyan, Tiomkin and his 

firm—have shown the claims in the cross-complaint arise from an 

act in furtherance of Abelyan’s constitutional right to petition, 

i.e., protected activity. (§ 425.16, subd. (b)(1); Park, supra, 

2 Cal.5th at p. 1061.) “A claim arises from protected activity 

when that activity underlies or forms the basis for the claim.” 

(Park, at p. 1062.)

It is evident on the face of the cross-complaint that the 

Geragos Parties’ claims are entirely premised on three litigation 

and/or settlement communications: (1) the email communications 

between Tiomkin and Kirakosian; (2) the telephone conversation 

between Tiomkin and Kirakosian; and (3) the telephone 

conversation between Tiomkin and Kazarian.

There is no question that communications sent in 

anticipation of litigation or as part of ongoing litigation constitute 
21

legitimate speech or petitioning activity protected under the antiSLAPP statute. (Cabral v. Martins (2009) 177 Cal.App.4th 

471, 480 [“all communicative acts performed by attorneys as part 

of their representation of a client in a judicial proceeding or other 

petitioning context are per se protected as petitioning activity by 

the anti-SLAPP statute”]; Seltzer v. Barnes (2010) 

182 Cal.App.4th 953, 963 [“ ‘[a]n attorney’s communication with 

opposing counsel on behalf of a client regarding pending litigation 

directly implicates the right to petition and thus is subject to a 

special motion to strike’ ”]; Navellier, supra, 29 Cal.4th at p. 90 

[settlement negotiations are within the scope of § 425.16].)

However, this protection does not extend to communication 

or conduct that is, as a matter of law, illegal. By contending the 

communications constituted extortion, the Geragos Parties argue 

the petitioning activity is unprotected. The watershed case in 

this regard is Flatley.

Flatley was a well-known entertainer and performer who 

sued attorney Mauro for conduct arising out of his representation 

of a client (Robertson) who claimed Flatley raped her in his Las 

Vegas hotel suite. (Flatley, supra, 39 Cal.4th at p. 305.) Flatley 

asserted several causes of action, including civil extortion, based 

on a demand letter from Mauro. (Ibid.) Mauro responded to the 

suit by filing an anti-SLAPP motion, claiming the demand letter 

was “a prelitigation settlement offer in furtherance of his 

constitutional right of petition.” (Id. at p. 311.)

Our Supreme Court examined the demand letter, which

included “threats to publicly accuse Flatley of rape and to report 

and publicly accuse him of other unspecified violations of various 

laws unless he ‘settled’ by paying a sum of money to Robertson of 

which Mauro would receive 40 percent.” (Flatley, supra, 
22

39 Cal.4th at p. 329.) “The key passage in Mauro’s letter is . . . 

where Flatley is warned that, unless he settles, ‘an in-depth

investigation’ will be conducted into his personal assets to 

determine punitive damages and this information will then 

‘BECOME A MATTER OF PUBLIC RECORD, AS IT MUST 

BE FILED WITH THE COURT . . . . [¶] Any and all 

information, including Immigration, Social Security 

Issuances and Use, and IRS and various State Tax Levies 

and information will be exposed. We are positive the media 

worldwide will enjoy what they find.’ ” (Ibid.) The demand 

letter’s “final paragraph warns Flatley that, along with the filing 

of suit, press releases will be disseminated to numerous media 

sources and placed on the Internet.” (Ibid.) In Mauro’s follow-up 

phone calls, Mauro “named the price of his and Robertson’s 

silence as ‘seven figures’ or, at minimum, $1 million.” (Ibid.)

The Supreme Court concluded that Mauro’s letter and 

subsequent phone calls constituted “extortion as a matter of law” 

and were not constitutionally protected speech or petitioning 

activities under the anti-SLAPP statute. (Flatley, supra, 

39 Cal.4th at pp. 328, 330 [“These communications threatened to 

‘accuse’ Flatley of, or ‘impute to him,’ ‘crime[s]’ and ‘disgrace’ 

(Pen. Code, § 519, subds. 2, 3) unless Flatley paid Mauro a 

minimum of $1 million of which Mauro was to receive 

40 percent.”].) The threat to disclose “criminal activity entirely 

unrelated to any alleged injury suffered by Mauro’s client 

‘exceeded the limits of [Mauro’s] representation of his client’ and 

is itself evidence of extortion.” (Id. at pp. 330–331.)

We note two very important distinctions the Supreme 

Court discussed in Flatley. First, it “note[d] that, in the 

proceedings below, Mauro did not deny that he sent the letter nor 
23

did he contest the version of the telephone calls set forth in [the] 

declarations in opposition to the motion to strike.” (Flatley, 

supra, 39 Cal.4th at pp. 328–329.) This is why the Court viewed 

the evidence as uncontroverted as a matter of law. (Id. at p. 329.) 

Second, the Court emphasized that its conclusion that Mauro’s 

communications constituted criminal extortion as a matter of law 

was “based on the specific and extreme circumstances of this 

case.” (Id. at p. 332, fn. 16, italics added.) The Flatley court 

stated: “[O]ur 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.” (Ibid.)

Unlike Mauro in Flatley who conceded the content of the 

communications (telephone calls and letter), here, Tiomkin does 

not concede that he engaged in extortionate or illegal conduct as 

alleged by the Geragos Parties. Thus, the applicability of the 

Flatley exception hinges on whether the Geragos Parties provided 

uncontroverted evidence conclusively showing Abelyan and/or 

Tiomkin committed extortion as a matter of law. In analyzing 

the three litigation/settlement communications raised in the 

cross-complaint, we bear in mind the Supreme Court’s comment 

in Flatley that it found extortion as a matter of law “based on the 

specific and extreme circumstances” of that case. (Flatley, supra, 

39 Cal.4th at p. 332, fn. 16.)

A. Telephone conversation between Tiomkin and 

Kirakosian

The Geragos Parties’ cross-complaint alleged that 

Kirakosian called Tiomkin on August 14, 2020, at which time 

Tiomkin “discuss[ed] the immediate filing of a State Bar 
24

complaint against the Geragos Firm.” Kirakosian requested 

Tiomkin “refrain from making such veiled threats.” The 

conversation ended when Tiomkin stated the Geragos Firm 

should return the $27,500 back to Abelyan “or Abelyan would be 

immediately filing a State Bar complaint.”

The evidence about the August 14, 2020 telephone 

conversation includes Kirakosian’s declaration submitted in 

support of the Geragos Parties’ opposition and Tiomkin’s 

declaration submitted in support of his and Abelyan’s special 

motions to strike. Kirakosian declared Tiomkin “unequivocally 

stated that his client would be filing a State Bar complaint if the 

matter wasn’t promptly resolved,” whereas Tiomkin declared that 

at no point during the discussion did he threaten to report the 

Geragos Parties to the State Bar or to pursue State Bar 

proceedings against them.

The declarations provide conflicting accounts of what was 

said during the August 14, 2020 telephone conversation. We do 

not solely rely on the Geragos Parties’ or Kirakosian’s 

declarations. (Flickinger v. Finwall (2022) 85 Cal.App.5th 

822, 837 (Flickinger) [their “subjective and self-serving 

interpretation cannot establish extortion as a matter of law”].) 

The declarations provided by both sides create a genuine issue of 

material fact (Soukup, supra, 39 Cal.4th at p. 286) and in no way 

qualify as uncontroverted evidence that conclusively establishes 

criminal extortionate conduct by Tiomkin.

B. Email communication between Tiomkin and 

Kirakosian

The cross-complaint alleged Tiomkin raised the issue of 

State Bar violations to Kirakosian via email on August 13 and 14, 
25

2020, and made veiled threats to report the Geragos Parties to 

the State Bar unless they paid $27,500.

The evidence as to this includes Tiomkin’s declaration in 

support of the anti-SLAPP motion, Kirakosian’s declaration in 

support of the opposition to the motion, and copies of the emails 

which were attached as exhibits to their declarations.

Tiomkin’s emails sent August 13 and 14, 2020 provide, in 

relevant part: 

• “I appreciate your admission that your client stole 

$27,500 of my client’s funds for unspecified 

‘investigation’ services. . . . [¶] . . . [¶] Also, as long as 

you are providing documentation, would you provide 

all documents concerning relevant State Bar 

investigations of Mr. Geragos and his associates 

pertaining to his theft of client funds?”

• “Setting aside the fact that the ‘fee agreement’

violates multiple State Bar rules, . . . . [¶] . . . [¶] . . . I 

would be fascinated to learn what ‘investigation’ Mr. 

Geragos performed for $27,500. . . . I think that you 

should familiarize yourself with the State Bar’s 

position on true retainers, if this is going to be Mr. 

Geragos’ defense.”

• “I . . . inquired about whether Mr. Geragos was going 

to be available for deposition, given his indictment as 

an unnamed co-conspirator in the Avenatti case, and 

the possibility that he might be in federal custody in 

the near future. You said that you were aware of the 

federal investigation, but that at this point, no 

charges have bee filed against Geragos. [¶] I also 

asked if you were aware of a State Bar investigation 
26

related to Geragos’ theft of Mr. Abelyan’s funds. You 

stated that there are multiple inquiries involving 

Geragos and you were not going to get into them.”

• “I hope Mr. Geragos is staying well. Has he managed 

to remain out-of-custody?”

The Geragos Parties argue “Tiomkin’s veiled threats in 

emails to Kirakosian . . . constitute documented evidence of 

extortion that is undisputed.” They contend the facts of this case 

are analogous to Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799 

(Mendoza) and Stenehjem v. Sareen (2014) 226 Cal.App.4th 1405 

(Stenehjem). We briefly recite their facts.

In Mendoza, Mendoza received a demand letter from 

attorney Hamzeh sent on behalf of his client, Mendoza’s former 

employer. The letter provides: “ ‘We are in the process of 

uncovering the substantial fraud, conversion, and breaches of 

contract that [Mendoza] has committed on my client. . . . To 

date[,] we have uncovered damages exceeding $75,000 . . . . If 

[you do] 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 . . . as well as reporting [you] to 

the California Attorney General, the Los Angeles District 

Attorney, [and] the Internal Revenue Service.’ ” (Mendoza, 

supra, 215 Cal.App.4th at p. 802, italics added.) The reviewing 

court held that the demand letter constituted extortion as a 

matter of law because it involved a threat to report criminal 

conduct coupled with a demand for money. (Id. at p. 806.)

In Stenehjem, the cross-defendant litigant sent an email 

(the purported settlement demand) that “threatened to expose 

Sareen [(his former employer’s CEO)] to federal authorities for 

alleged violations of the False Claims Act unless he negotiated a 
27

settlement of Stenehjem’s private claims,” including defamation 

and wrongful termination. (Stenehjem, supra, 226 Cal.App.4th at 

p. 1423, italics added.) The email demand “mentioned a potential 

qui tam suit . . . and referred to potential involvement of the 

United States Attorney General, Department of Justice, and 

Department of Defense.” (Id. at pp. 1409–1410.) The Stenehjem

court found that the absence of an express threat or a demand for 

a specific sum of money in the email did not negate its 

fundamental nature as an extortionate writing. (Id. at p. 1424.)

We find these cases inapposite. Nowhere in Tiomkin’s 

emails do we find a threat to file a State Bar claim coupled with a 

demand for money. In addition, unlike the alleged criminal 

activity that the cross-defendant litigant in Stenehjem threatened 

to expose in a qui tam action, which was “ ‘entirely unrelated’ ” to 

any alleged injury suffered by him in his defamation and 

wrongful termination claims (Stenehjem, supra, 226 Cal.App.4th 

at p. 1423), Tiomkin’s communications were related to the alleged 

injury his client suffered (i.e., breach of contract and promissory 

fraud claims for payment of a retainer to an attorney for services 

which were never rendered).

We agree with Abelyan and Tiomkin that Malin is 

dispositive. In Malin, attorney Singer sent a demand letter to his 

client’s business associates Malin and Moore, announcing his 

client’s intention to sue them for numerous wrongs. He attached 

to the demand letter a copy of the draft complaint with claims for 

embezzlement, breach of fiduciary duty, and conversion. (Malin, 

supra, 217 Cal.App.4th at p. 1289.) Singer accused Malin of 

embezzling and misusing company resources to arrange sexual 

liaisons with older men such as “Uncle Jerry,” a judge whose 

name was redacted, with a photo of the judge. (Ibid.) The letter 
28

specified that Singer’s client “ ‘will file the Complaint against you 

and your other joint conspirators unless this matter is resolved to 

[the] client’s satisfaction within five (5) business days.’ ” (Ibid.) 

Malin sued for civil extortion, among other claims, and Singer 

and his client moved to strike Malin’s complaint pursuant to the 

anti-SLAPP statute. (Id. at p. 1290.)

The reviewing court concluded Singer’s demand letter was 

protected communication in anticipation of litigation and did not 

constitute criminal extortion as a matter of law “under the 

narrow exception articulated in Flatley.” (Malin, supra, 

217 Cal.App.4th at pp. 1294, 1299.) The court reasoned that “[i]n 

contrast with the demand letters in Flatley and Mendoza, 

Singer’s demand letter did not expressly threaten to disclose 

Malin’s alleged wrongdoings to a prosecuting agency or the public 

at large.” (Id. at p. 1298.) The court further found the “secret” 

that would allegedly expose Malin to disgrace was inextricably 

tied to Singer’s client’s pending complaint, as the demand letter 

accused Malin of embezzling money and simply informed him 

that Singer’s client knew how he had spent those funds. (Id. at 

p. 1299.)

As in Malin, we conclude Tiomkin’s comments did not fall 

under the narrow Flatley exception. Misappropriation of client 

funds is the gravamen of the civil action against the Geragos 

Parties. If a threat to report such conduct to the State Bar was 

made, it had a reasonable connection to the underlying dispute 

and therefore is not comparable to the “extreme” conduct found 

unprotected by Flatley.

The Geragos Parties’ contention that Tiomkin’s 

communications violated rule 3.10(a), which prohibit an attorney 

from “threaten[ing] to present criminal, administrative, or 
29

disciplinary charges to obtain an advantage in a civil dispute,” 

does not establish that those communications constituted 

criminal extortion as a matter of law. Even assuming the 

Geragos Parties could establish Tiomkin had violated rule 

3.10(a), that violation would not constitute criminal conduct 

within the narrow Flatley exception, which is limited to criminal 

conduct and not a violation of the Rules of Professional Conduct 

or a civil statute. (See Bergstein v. Stroock & Stroock & Lavan 

LLP (2015) 236 Cal.App.4th 793, 806 [court’s use in Flatley of the 

phrase “illegal” was intended to mean criminal, and not merely 

violative of a statute]; see Fremont Reorganizing Corp. v. Faigin

(2011) 198 Cal.App.4th 1153, 1169 [“Conduct in violation of an 

attorney’s duties of confidentiality and loyalty to a former client 

cannot be ‘illegal as a matter of law’ ” under the Flatley

exception]; see also Flickinger, supra, 85 Cal.App.5th at p. 836 

[“The Flatley court could have, but did not, limit its analysis to 

the fact that the threat was itself a breach of ethical rules.”].)

Finally, while the Geragos Parties argue Tiomkin 

threatened “criminal charges against Geragos” by asking whether 

Geragos has “managed to remain out-of-custody” in one of his 

emails to Kirakosian, a review of the entire email thread makes 

apparent Tiomkin’s question is in reference to the allegations 

surrounding the Avenatti matter. In Flatley, the Supreme Court 

cautioned 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” do not “necessarily 

constitute extortion.” (Flatley, supra, 39 Cal.4th at p. 332, fn. 

16.) This rings true here, as a review of the emails make clear 

both attorneys were zealously, aggressively, and somewhat 
30

rudely representing their respective clients. While the email 

communications do not portray the professional civility and 

decorum we would hope for, it in no way amounts to a conclusive 

showing of extortion as a matter of law. As stated in Flickinger, 

supra, 85 Cal.App.5th at p. 836, “[w]e read Flatley as permitting 

a finding of extortion as a matter of law only where an attorney’s 

threats fall wholly outside the bounds of professional norms.” 

(Italics added.) That is not the case with these emails.

C. Telephone communication between Tiomkin and 

Kazarian

We preliminarily address the partial audio recording (and 

transcript), which the Geragos Parties argue is admissible. We 

conclude the trial court did not err in finding the audio recording 

inadmissible.

Penal Code section 632, subdivision (a) provides: “A person 

who, intentionally and without the consent of all parties to a 

confidential communication, uses an electronic . . . recording 

device to eavesdrop upon or record the confidential 

communication, whether the communication is carried on among 

the parties in the presence of one another or by means of a . . . 

telephone . . . shall be punished.” (Pen. Code, § 632, subd. (a).) 

Penal Code section 632, subdivision (d) specifies: “Except as proof 

in an action or prosecution for violation of this section, evidence 

obtained as a result of eavesdropping upon or recording a 

confidential communication in violation of this section is not 

admissible in any judicial, administrative, legislative, or other 

proceeding.” (Pen. Code, § 632, subd. (d).)

The Geragos Parties contend for the first time on appeal 

that Kazarian’s recording is not governed by Penal Code section 

632 because her conversation with Tiomkin was not a 
31

confidential communication. “Tiomkin contacted Kazarian—a 

third-party to this action who does not represent any of the 

parties involved and had no prior knowledge of this dispute—in 

order to convey a message to her colleague” and thus does not 

“ ‘reasonably indicate [Tiomkin] desire[d] it to be confined’ ” to 

the parties involved.

This argument fails for two reasons. First, the record on 

appeal makes clear that the Geragos Parties did not raise this 

argument before the trial court. “ ‘As a general rule, theories not 

raised in the trial court cannot be asserted for the first time on 

appeal; appealing parties must adhere to the theory (or theories) 

on which their cases were tried. This rule is based on fairness—it 

would be unfair, both to the trial court and the opposing litigants, 

to permit a change of theory on appeal.’ ” (Nellie Gail Ranch 

Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.)

Second, the Geragos Parties’ representation that Kazarian 

was “a third-party . . . who does not represent any of the parties 

involved and had no prior knowledge of this dispute” is not well 

taken. Their cross-complaint expressly states Kazarian is “of the 

Geragos Firm” and “a representative of the Geragos Firm.” A 

litigant is bound by facts pleaded in a verified complaint. (Acuna 

v. San Diego Gas & Electric Co. (2013) 217 Cal.App.4th 1402, 

1416; see Brecher v. Gleason (1972) 27 Cal.App.3d 496, 499, fn. 1 

[“A verified assertion in a pleading is a conclusive concession of 

the truth of the matter pleaded.”].)

The Geragos Parties next contend Penal Code section 633.5 

exempts Kazarian’s recording from exclusion by Penal Code 

section 632 because Kazarian “initiated the recordings to obtain 

evidence that she reasonably believed would show Tiomkin 

committing extortion.” Penal Code section 633.5 provides that 
32

section 632 does “not prohibit one party to a confidential 

communication from recording the communication for the 

purpose of obtaining evidence reasonably believed to relate to the 

commission by another party to the communication of the crime 

of extortion, kidnapping, bribery, any felony involving violence 

against the person, [and] do[es] not render any evidence so 

obtained inadmissible in a prosecution for extortion, kidnapping, 

bribery, . . . or any crime in connection therewith.” (Pen. Code, 

§ 633.5, italics added.)

Thus, Penal Code section 633.5’s express language 

narrowly permits use of a recording of a confidential 

communication “in a prosecution for extortion, kidnapping, 

bribery” and other expressly specified crimes. Nevertheless, the 

Geragos Parties argue Penal Code section 633.5 also allows for its

use in civil actions. We have reviewed the case authority the 

Geragos Parties have cited and find that none specify that

nonconsensual recordings are admissible evidence in civil actions. 

Indeed, PPFA v. Center for Medical Progress (2016) 

214 F.Supp.3d 808, 854, one of the cited cases, provides that 

Penal Code section 633.5 “is an affirmative defense to liability 

under [Penal Code] section 632” and does not stand for the 

proposition that unconsented recordings are admissible evidence 

in civil actions.

Accordingly, the Geragos Parties fail to show an abuse of 

discretion by the trial court in ruling the partial audio recording 

inadmissible in the civil action.

Without the recording, the only evidence about the 

telephone conversation between Tiomkin and Kazarian are their 

respective declarations, which result in a he-said-she-said conflict 

as to what was actually said. This does not equate to conclusive 
33

evidence of extortion as a matter of law. “If . . . a factual dispute 

exists about the legitimacy of the defendant’s conduct, it cannot 

be resolved within the first step but must be raised by the 

plaintiff in connection with the plaintiff’s burden to show a 

probability of prevailing on the merits.” (Flatley, supra, 

39 Cal.4th at p. 316.)

We find none of these communications presents extortion 

as a matter of law. We conclude Tiomkin and Abelyan made the 

threshold showing that the Geragos Parties’ cross-complaint is 

based on protected activity and thus subject to the anti-SLAPP 

statute.

IV. Prong 2: Probability of Prevailing

We proceed to prong two of the anti-SLAPP analysis—

whether the Geragos Parties carried their burden of establishing 

a probability of prevailing on the causes of action of their crosscomplaint.

The principal difficulty the Geragos Parties face in showing 

a probability of prevailing on their claims is California’s litigation 

privilege codified in Civil Code section 47, subdivision (b). 

Regardless of whether the Geragos Parties have generally 

averred the elements of the five causes of action in their crosscomplaint, they cannot rebut Tiomkin’s and Abelyan’s litigation 

privilege defense.

The principal purpose of the litigation privilege is to afford 

litigants and witnesses the utmost freedom of access to the courts 

without fear of harassment in subsequent derivative actions. 

(People ex rel. Gallegos v. Pacific Lumber Co. (2008) 

158 Cal.App.4th 950, 958 (Gallegos).) “The usual formulation is 

that the privilege applies to any communication (1) made in 

judicial or quasi-judicial proceedings; (2) by litigants or other 
34

participants authorized by law; (3) to achieve the objects of the 

litigation; and (4) that have some connection or logical relation to 

the action.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) The 

privilege is an absolute privilege and bars all tort cases of action 

except a claim of malicious prosecution. (Flatley, supra, 

39 Cal.4th at p. 322.) The privilege has been applied in 

“numerous cases” involving “fraudulent communication or 

perjured testimony.” (Silberg, at p. 218.) The litigation privilege 

protects even communication made with an intent to harm, so 

long as the communication is made in “relation” to a 

pending/ongoing or genuinely contemplated judicial or other 

official proceeding. (Civ. Code, § 47, subd. (b); Gallegos, at 

pp. 958–959; Wise v. Thrifty Payless, Inc. (2000) 83 Cal.App.4th 

1296, 1302 [the litigation privilege applies “regardless of the 

existence of malice or intent to harm”].)

The litigation privilege is “not limited to statements made 

during a trial or other proceedings, but may extend to steps taken 

prior thereto, or afterwards.” (Rusheen, supra, 37 Cal.4th at 

p. 1057.) A prelitigation communication is privileged only if it 

relates to litigation that is contemplated in good faith and under 

serious consideration. (Flickinger, supra, 85 Cal.App.5th at 

p. 840.) The requirement of good faith contemplation and serious 

consideration provides some assurance that the communication 

has some connection or logical relation to a contemplated action 

and is made to achieve the objects of the litigation. (Ibid.) 

Whether a prelitigation communication relates to litigation that 

is contemplated in good faith and under serious consideration is 

an issue of fact. (Ibid.)

For instance, in Malin, supra, 217 Cal.App.4th at p. 1301, 

the reviewing court explained, “In order for a prelitigation 
35

communication such as [attorney] Singer’s demand letter to be 

privileged under Civil Code section 47, subdivision (b), it must 

‘relate[] to litigation that is contemplated in good faith and under 

serious consideration.’ ” The court then found the litigation 

privilege did apply to Singer’s demand letter, “given the 

similarity of the sexual misconduct allegations in both the letter 

and subsequent complaint.” (Ibid.) The court concluded the 

demand letter is protected by the privilege as it was “logically 

connected to litigation that was contemplated in good faith and 

under serious consideration when the letter was sent.” (Id. at 

p. 1302.) Similarly, in Flickinger, supra, 85 Cal.App.5th at 

p. 840, we found the litigation privilege applied to the defendant’s 

prelitigation letter as it “related to litigation threatened by 

plaintiff against defendant’s client” and “bore a connection or 

logical relation to the litigation and advanced [the defendant’s 

client‘s] interest in avoiding the litigation.”

Here, the cross-complaint is based on discussions between 

counsel—via email and telephone call—where a potential State 

Bar complaint was referenced in connection with a pending 

lawsuit. The communication thus meets the criteria stated in 

Malin and in Flickinger—it bears a connection or logical relation 

to ongoing litigation initiated by Abelyan via his civil complaint 

and his counsel Tiomkin’s efforts to settle and avoid further 

litigation. In addition, the communication complained of was 

made in relation to not just an ongoing civil lawsuit, but a 

potential State Bar action as well. (See Kashian v. Harriman

(2002) 98 Cal.App.4th 892, 913 [the litigation privilege “ ‘includes 

statements made to initiate official action’ ”].) Geragos’s 

declaration, submitted in support of the Geragos Parties’ 

opposition, provides that Abelyan and/or Tiomkin indeed 
36

submitted “allegations against [Geragos] and [Qassim] to the 

State Bar.” Thus, there can be no doubt that Abelyan genuinely 

contemplated this State Bar action, which is the pivotal issue as 

to the applicability of the litigation privilege in the context of 

demands made prior to the actual commencement of threatened 

recourse. (See Action Apartment Assn., Inc. v. City of Santa 

Monica (2007) 41 Cal.4th 1232, 1251; Feldman v. 1100 Park Lane 

Associates (2008) 160 Cal.App.4th 1467, 1489–1490.)

The Geragos Parties also contend we “should reverse the 

determination of the [t]rial [c]ourt and hold that the litigation 

privilege does not apply to Tiomkin’s communication with 

Kazarian.” They argue Kazarian did not represent the Geragos 

Parties and did not have a substantial interest in this matter. 

However, as already discussed in the preceding section, the crosscomplaint expressly states Kazarian is “a representative of the 

Geragos Firm.”

In short, given the absolute nature of the litigation 

privilege, the Geragos Parties did not carry their burden of 

showing a probability of overcoming Tiomkin’s and Abelyan’s 

litigation privilege defense. Accordingly, the trial court properly 

granted the special motions to strike the cross-complaint.

V. Attorney Fees

Lastly, the Geragos Parties’ sole basis for challenging the 

award of attorney fees and costs to Tiomkin and Abelyan under 

section 425.16, subdivision (c) is that the trial court erred in 

granting the anti-SLAPP motion. Because we affirm the order 

granting the anti-SLAPP motion, we also affirm the award of 

attorney fees and costs.
37

Abelyan and Tiomkin request that we award them attorney 

fees on appeal. They may request an award of attorney fees by a 

properly filed motion with the trial court.

DISPOSITION

The trial court’s order sustaining respondents’ evidentiary 

objections is affirmed. The order granting the anti-SLAPP 

motion is affirmed. The trial court’s attorney fee award made 

pursuant to section 425.16, subdivision (c) is also affirmed. 

Respondents shall recover their costs on appeal. (Cal. Rules of 

Court, rule 8.278(a)(1).)

CERTIFIED FOR PUBLICATION

STRATTON, P. J.

We concur:

GRIMES, J. HARUTUNIAN, J.*

* Judge of the San Diego Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.