Filed 10/17/22 From T he Earth v. Beltran CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 publication or ordered published, except as specified by rule 8.1115(b) . This opini o n has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

FROM THE EARTH, LLC

,

Plaintiff and Respondent

,

v.

MARIO BELTRAN

,

Defen dant and A ppellant

. B 310055

( Los Angeles County Super. Ct. No. 2 0STCV 36221)

APPEAL from a n order of the Superior Court of Los Angeles County. Michael P. Linfield , Judge

. Affirmed

. Urtnowski & Associates

, J. Brian Ur tnows ki a nd L i samarie
McDermott for Plaintiff and Respondent.
Law Office of Jos e Luis Fuent es and Jos e Luis Fuentes for
Defendant and Appellant

.

________ _______________

_________2 The City of Commerce denied commercial cannabis license s
t o From The Eart h, LLC af ter t he comp any refused to participate in an alleged extortion and kickback scheme operated by Mario
Beltran

, a cannabis lobbyist

. From The Ear th su ed Beltran and the City, alleging Beltran had colluded with the City in an attempt t o extor t From T he Earth and the Ci t y had violated
From T he Earth ’ s right to equal protection by denying its license application on pretextual grounds while approving cannabis
licenses for similar appli cants

. Beltran filed a special motion to
strike the extortion caus e of actio n (Cod e Civ. Proc., § 425.16)

, 1 contend ing his conduct constituted protected p etitioning activity
under the statute and From T he Earth co uld not establis h a probability of prevailing on the merits

. The trial court denied the
motion

, rul ing t he cau se of ac tion a gainst Be ltran for extortion did not arise from protected activity

. Although we disagree with
the trial court ’ s r easoning

, b ecause From The Earth established the requisite minimum probability of prevailing on the meri ts
, w e aff ir m. FACTUAL A ND PRO CEDURAL B ACKGROUND

1. From T

he E a rth ’

s Un succ essful Application f or Cannabis Li censes In a declaration filed with From T he Earth ’ s opposition to
Beltran ’ s special motion to strike, Kint u Patel, a founding
member and man a ger o f the com pany , describ ed the f actual
ba ckground of From T he Earth ’ s cause of action for extortion. According to Patel, in October 2018 From The Earth applied to the City for non

- storefront commercial cannabis delivery,

1 Statutory references are to thi s code unless othe rwise stated

.3

cultiva tion, ma nufac turing and distribution business l icense s. As part of its appli cation From The Ea rth completed a mapping report verifying that its proposed business location was more
than 600 feet from any schools, daycares, parks and youth

center s as r eq uired by the City ’ s municipal code. On October 31, 2018 the Ci ty notifi ed From The E arth its

app lication had been successfully submitted and was being advanced to phase two of the application process

. On
November 7, 2018 th e Cit y notified From The Earth it was a

“ qualified applicant ” and its application had ad vanced to the

t hird and final phase

, c ity c ouncil consideration.
Around the time of the City ’ s November 7, 2018 notice

, Beltran telephon ed Pa tel

. P atel ’ s declaration stated he
understood Beltran was a former City of Bell councilme mber with

a criminal reco rd and a reputa tion for attempting to assert influence in cities that were awarding cannabis licenses

. According to Pa tel, Bel tr an st ated

, if From The Earth did not

engage him as a lobbyist for its application process and pa y Beltran certain kickbacks

, he would ensure t he City would den y From T he Earth ’ s cannabis license application. ( Beltran denies making any such t hreat

. ) F rom The Earth did not respond to or engage Beltran ’ s services

. On November 16, 2018 the City sent From The Ea rth a
conditional “ N ot ice of S electio n , ” stating the c ity c ouncil had
voted to authorize From The Ear th to conti nu e to advance through the permit process “ in order to ultimately establi sh a
lawful commercial cann abis business in the City. ” The N otice of
S election was contingen t on F rom T he E arth fulfilling all applicable requirements, including ob ta ining a recommendation of approval from the c ity p lanning c ommission and the c ity4

c ouncil ’ s final approval of From T he Earth ’ s development

agr eement

. On November 30, 2 018 Beltran ema iled F rom The E a rth
and attached a proposed contract . A mo ng ot her things the contract required From T he Earth to make an initial payment of $50,000 to Belt ran u pon award of the permits

, pay Beltran $2,500 per month

, for an in definite amount of time

, and

e ncumbe r any future purchaser of Fro m the Earth ’ s business
with the o bligation to pay Beltran $2 ,500 monthly (or
alternati vely, pay Beltran 10 percent of the purchase price)

, in exchange f

o r wh ich Beltran would “ solidify [ From The Earth ’ s]
efforts to secure local permits or licenses to operate cannabis businesses, specifically in the City of Commerce

. ” Beltran requested that From The Earth sign an d ret urn the contr ac t wit hin 24 hours

. Wi thin minutes of From The Earth receiving Beltran ’ s

e mail and con tract o n November 30, the City sent an email

not ifying From The Earth it was authorized to apply for a temporary business license to engage in commerci al ca nn ab is
activities

. The City address ed this email to two principals of
From The Earth and to “ Mario ”

— Beltra n ’ s first name. Fr om The
Earth had n either retained Beltran n or notified the City that it had any relationship to h im.
Patel immediately asked the City to remove Beltran fro m any futur e correspondence with From The Earth. The following day Patel told Bel t ran that From The Earth would not retain him
f o r any lobbying services.
On February 13, 2 019 t he City ’ s p lanning c ommission voted

to recommend the c ity c ouncil deny From T he Earth ’ s

ap pli catio n. On A pril 3 0, 20 19 the c ity c ouncil considered and5

denied Fr om T he Earth ’ s application for commercial cannabis
licenses

. 2. From T

he Earth ’

s Complaint
From The Earth sued th e City and Beltran on Septemb er 22, 2020 alleging the City and Doe def endants had
violated its Fourteenth Amendment right to equal protection and
Beltran a nd Doe defendants were liab le for extort ion. The complaint detaile d the steps take n by From T he Earth to obtain approval of its c ommercial cannabis licenses, Be ltran ’ s ef forts to be retained by From T he Earth and his implied t hreats of
adver se consequences if it did not hire him an d the ult imate
de cision by the City to deny From T he Earth ’ s applicat ion. In particular, paragraph 25 of the complaint alleged, “ Defendant
Belt ran made threats to Plaintiff ’ s business intere st through both telephon ic and written communication b y [ sic ] wh en they to ld Plaintiff that if Plaintiff did not engage defendant Belt ran as its lobbyist for Plaintif

f ’ s Business License Application proc ess an d not pay certain kickbacks to defendant Beltran, defendant
Beltran wou ld ensure that defendant City of Commerc e w ould
de ny all of the Cannabis Licenses Plaintiff sought.

. . . Defe ndant
Beltran had his connection t o carry out his threats to Plaintiff
dis played in an email defendant City of Commerce sent to
Plaintiff

, which feigned a presupposition that P laintiff h ad

agree d to the engage in the illegal kickback scheme with
defendant Beltran. ”

3. The Special Motion T o Strike

Beltran filed a section 425.16 special motion to strike the

c ause of action for extortion on October 2 8, 2020

. In his m otion
Be l tran argued h is offer of lobbyi ng services to From T he Earth in connection with the company ’ s pending cannabis license6

application and his communications with the City related to
cannabis licenses were protected sp eech or petitio ning activity

. In addition, he contended, his communications on which From
T he Earth ’ s cause of action was based were absolutely privileged
unde r Civil Code section 47, subdivision (b) (1 ) and (3). In its opposition to the motion From T he Earth s ubmi tted
P ate l ’ s declaration, described in a preceding section, and argued extortion is not a protected f orm of speech ; B eltran ’ s

commun i c ation s with Fr o m T he Earth were not made i n connecti on with an issue of public interest ; and his speech wa s
not pri vileg ed under Civil Code section 47, subdivision (b).
After hearing argument the trial court denied the motion.
At the outset of its ruling the court wrote
, “ The is sue presented here is simple : is an alleged extortion scheme protecte d by the
anti

- SLAPP sta tute. The answer is equally simple: No. ”
The court explained, “ Defendant fails to meet his initial burden to make a prima facie showing that the gravame n of Plaintiff’s allegations against Defendant are protected by Code of
Civil Proc edur e section 425. 16. Contrary to Defendant’s assertion, the gravamen of Plaintiff’s c lai m against him are not
based on speech or writing made in connection with an issue

un der review or consideration by an off icial proceeding with the City of Commerce’s city council. Ins tead, the gra vamen of Plaintiff’s claim against Defendant Beltran is t hat Defendant Beltran made telephonic and written threats to Plaintif f, threatening th at if Plaintiff did not use Defendant Beltran’s lobbying services, t h en Defendant Belt ran would reta liate against Plaintiff and ensure that Defendant City of Commerce

wou ld deny the cannabis licenses Plaintiff applied to receive from
Defen dant City of Comm erce. [Citation.] [¶] Defend ant ha s7

failed to meet his initial bur den to demonst rate how these
all egations, ce ntral to Plaintiff ’ s claim for extortion against
De fendant, arise from protected activity pursuant to the anti

SLAPP statute. ” 2
Beltran filed a timely notice of appeal

.

DISCUSSION

1. The Spe cial Moti o n T o Str ike: Gov ernin g Law and Standard of Review
Sec tion 425.16, commonly known as the anti

- SLAPP statute, makes availabl e a special moti on to strike certain meritless claims early in the litigat ion: “A cause of action ag ainst

a pe rson arising from any act of t hat perso n in furtherance of the person’s righ t of petition or free speech under the United States
Constitution or the California C onstitution in connection with a public issue shall be sub ject to a special motion to strike, u nless
the co urt deter m ine s tha t the pla intif f has established that there
is a probability that the plaintiff will prevail on the claim.” (§ 425. 16, subd. (b)(1) ; see Rand Resources, LLC v. City of Carson (2019) 6 Cal. 5th 610, 619

- 620 [“[a] cour t may stri ke a cause o f

2 Seve ral weeks after denying Beltr an ’ s moti on, t he trial

co urt denied the City ’ s special motion to strike. We affirmed that order in a non published opinion earlier this year ( From The Earth , LLC v. City of Commerce (Mar

. 15, 2022, B311070) )

, holding the C ity ’s decision to deny From The Earth ’ s can nabis business l icense application, the basis for its equal protection claim, did not arise from protected activity. ( See Shahbazi an v. City of Ra ncho Palos Verdes (2017) 17 Cal.App.5th 823, 836

- 8 37 [in analyzing a cl aim based on discriminatory government al action, the c ourt must distinguish betw een challenges to government decisions and statements that m a y have led to those decision s ].)8

action o nly if t he cause of ac tion (1) arises from an act in
fu rtherance of the right of petition or fr ee speech ‘in connection
wit h a public issue ,’ and (2) the plaintiff has not established ‘a probabilit y’ of prevailing on the cla im”].)
Pur suant to sec tion 425. 1 6, s ubdi vision (e ), an “‘act in furtherance of a person ’s right of petition or free speech under the
United States or Calif ornia Constituti on in connection with a public issue’ includes: (1) any w ritten or oral statement or
writin g m ade before a legislat i ve, exec utive, or judi cial proceeding, or any other off icial proceeding authorized by law, (2) any written or oral statemen t or writing mad e in connection
with an issue under consideration or revie w by a legislative,
executi ve, or jud icial body, or any ot h er o ffic ial proce eding authorized by law, (3) any writt en or oral statement or writing made in a place open to the public o r a public forum in connection with an issue of public interest, or (4) an y other conduct in
furthera nce of the exercise of the cons t itu t iona l right o f pet ition or the constitutional right of free speech in connection with a public issue or an issue of pub lic interest.”
I n ruling on a special motion to strike under section 425.1 6, the trial court engages in a no w

- f amiliar two

- step proc e ss. “Fi rst, the defen dant must establish that the chal lenged claim arises from activity protected by section 425.16. [Cit ation.] If the
defendant makes the required showing, the burden shifts to the plaintiff to demonstra te the m er it of the cl aim by es t abl i shin g a proba bilit y of success.” ( Baral v. Schnitt (2016) 1 Cal.5th 376,
384 ; accord , Bonni v. St. Joseph Heal th System (2021) 11 Cal.5th 995, 1009 (

Bonni ); Park v. Board of Trustees o f California State
Universi ty (2017 ) 2 Cal.5th 10 57, 1061 ( Par k ).)9 “ A clai m ari ses from protected activity when that act ivity underlies or forms the basis for the claim.” ( Park , s upra, 2 Cal.5th at p. 1062 .) Thus, “[t]he defendant’s first

- step burden i s to identify the act ivity ea ch chal lenged claim res t s o n and
d emonstr ate t hat that activity is protected by the anti

- SLAP P statute. A ‘claim may be struck only if the speech or petitioning

a ctivity itself is the wrong complained of, and not just evidence of liability or a st ep leadi ng to s ome dif ferent ac t fo r whi ch liabil ity
i s asserted.’” ( Wilson v. Cable News Network, I nc . (2019)
7 Cal.5th 871, 884 ( Wilson ); see Bonni

, sup ra , 11 Cal.5th a t

p. 1009 [“[t]he defendant’s burden is to identify what acts ea ch challenged claim r ests on and to show ho w those a c ts are

p ro tected under a statutorily defined category of protected

ac tivity”]; Park , at p. 1060.) “As t o the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim ‘may not rely s olely on its complaint, even if v eri fied; i nstead, its proof mu st be made u pon competent admissible evidence.’” ( Sweetwat er Union High School
Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 ; 3 accord, Monster Energy Co. v. Schechter (2019) 7 Cal.5t h 781, 788 .) “‘We
have described th is seco nd step as a “summ ar y

- judgment

- l ike procedure.” [Citation.] The court does no t weigh evidence or resolve conflicting factual claims. Its inquiry is limited to

3 Although the Su pr eme Court in Sweetwater Union High School Dist. v. Gilbane Bu ilding Co.

, supra , 6 Cal.5th 931 referr ed generally to “competent admissible evidenc e,” the Court held certain types of evidence

, poten tially admissible at trial but
not presented in adm issible form, co ul d be considered in determining w hether the plaintiff had demonstrated a probability of succ ess on the merit s

. ( Id. at p. 949 ; see Sanch ez v. Bezos (2022) 80 Cal.App.5th 750, 770

- 779 .)10

whether the plaintiff has stated a legally sufficie nt claim and

m ade a prima facie f

act ual sho wing sufficient to s ustain a
fav orable judgment. It accepts the plaintiff ’ s ev idence as true,
and evaluates the defendant ’ s showing only to determine if it defeats the plaintiff's claim as a matter of law.’” ( Mo nster Energy

, at p. 788 ; see Taus v. Loftus (2007) 40 Cal.4th 6 83, 714 [the court should grant the section 425.16 motion “ ‘if, as a matter of law, the defendant ’ s evidence supporting the motion defeats the plaintiff

’ s attempt to establish evidentiary suppo rt for the
cla im’”].)
We review d e novo an order granting or d enying a spe cial
motion to strike under section 425.16. ( W ilson

, supra , 7 Cal.5th at p. 884; Park

, supra , 2 Cal.5th at p. 1067.)

2. From T

he Earth ’

s Cause of Action for Extortion Arose from Protected Sp eech or Petitioning Acti vity

Fr om T he Earth ’ s c ause of action f or extortion is expressly
based on Penal Code s ection 5 23
, whic h provides in
subdivision (a), “ Every person who , with intent to extort prope rty or other consideration from another, sends or delivers to any

person any letter or ot her w r i t ing, whe ther subscribed or not, expressing or implying, or adapted to im ply, any threat such as is specified in Section 519 is punishable in the same manner as if such property or other consideration were actually obtained by

means of s uch threat. ” ( S ee Pen. Code, § § 518 [ “ [e] xtortion is the obtaining of property or oth er consideration from another, with
his or her consent

. . . induced by a wrongful use of force or fear ” ],
519 [ “ [f]ear , such as will c o nstitute exto rtion, may be ind ucte d by a threat, ” including a threat “ [t] o do an unlawful i njury to the

person or proper ty of the individual threatened or of a third

person ” ] ; Flatley v. Ma uro ( 2006) 39 Cal.4th 299, 326 [ “ ‘ the11

legislature in denouncing t he wrongful use of fear as a mea ns o f obtaining prop erty from another had in mind threats to do the acts specified in sect ion 519, the making of which for the purpose stated is declared to be a wrongful use of fear induced
th ereby ’ ” ] .) 4
From T he E arth ’ s co mplaint allege d t hat Beltran ’ s o ffer of
his lobbying services included the th reat that , if he was not retained and paid as specified in his proposed contract , he would

ensu re the City denied the licenses sought by From T he Earth

. The credibility of this t hreat of interference in the app rov al

process , From T he Earth further alleg e d , was demonstrat ed by the City ’s email, recei ved immediately after Beltran sent the proposed contract, that included Beltran as one of the addressees

,

4 The c ourt of a ppeal in Fuhrman v. California Satel lite System s (1986) 179 Cal.App.3d 408
, disappro ved on another ground in Silberg v. Anderson (1990) 50 Cal.3d 205, 217

- 218,

r ecognized the crime of extort ion can form the basis for a civil action in tort. “However d enominated (e.g., exto r tion, menace, dur ess), our Supreme Court has recognized a cause o f action for the recov ery of money obtained by the wrongful t hreat of crimina l

or civil prosecution. [Cit ations. ] It is essenti a lly a cause of action for m oneys obtained by duress, a form o f fraud. ” ( Id. a t p. 426 ;

see ge n erally Rest.2d Torts, § 871 & com. a [ “[o] ne who inte ntionally deprives another of his legal ly protected property int erest or causes inju ry to the interest is subject to liability to the o ther if his conduct is generally c ulpable and not j u stifiable under the circu mstances ” ; t h is rule “ is applicable to dures s in a

gre at variety of situations ” ].) Although Beltran argues From T he Earth has n ot adequately pleaded a cause of a ction for civil

e x tortion, he does not contend atte mpted ext ortion a s defined in the P enal Code is not a va lid basis for a civil ca use of action.12

thereby indicating Beltran h ad already communicated with the
Ci ty regarding the license application

. Beltran ’ s communic ations to From T he Earth in a n attempt to be retained to lobby in support of its license applicati on ( with
the alleged accompanying threats) are the wrong compla in ed of, not simply “evidence of liab il ity or a step l eading to some
differe nt act for which li ability is assert ed

. ” ( Park, supra, 2 Cal.5th at p. 1060 .) Those efforts

— a n essential element of the
cause of action for civil extortion

— are properly considere d an aspect of protected petitioning activi ty

— s tatemen ts made in
connection with an issue pendi ng in an official proceeding with in

t he meaning of section 425.16, subdivision (e)(2)

. As alleged by
From T he E a rth, Be ltran ’ s phone calls and emails a ll explai ne d
how he could influence the City ’ s decision o n the pending application

. Nothing more was ne eded for Beltran to make the required first step showing. ( Cf. Rand Resources, LLC v. City of
Carson

, supra , 6 Cal .5t h at p. 629 [lobbying “comm unications

— d esig ne d to influence the City ’ s renewal d ecision while the renewal application [ for a contract gra n ting exclusive agency to

nego tiate with the NFL regarding a sta dium development ] was pending

— are reasonably considered communications ‘ in

connect ion with an issu e under consideration or review by a legislative

. . . bod y ’ within the mea ning of subdivision (e)(2) ” ] .)
That “ [e] xtorti on is not a constitutionally protected form of speech ” (

Flatley v. Mauro , supra, 39 Cal.4th at p. 328 ) and
Beltran ’ s actions w ere al le gedly part of a collusive extortion
scheme with the City does not affect our first

- step analy sis. “ If conduct that suppli es a necessary element of a claim is protected,
the defendant ’ s burden at the first step of the ant i

- SLAPP analysis has been carrie d, regardless of any alleged mot ivatio ns13

that supply ot her elements of the c laim. ” ( Wilson , su p ra, 7 Cal.5th at p. 892 [ conc luding that “ for anti

- SLAPP purposes
discrimination and retaliation claims arise fr o m the adverse actions allegedly taken, notwith stan ding the plaintiff ’ s allegati on tha t the actions wer e taken for an improp er purpose ” ].)
To be sure, as From T he Earth ar gues , the Supreme Court
in Flatley v. Mauro

, supra , 39 Cal.4th at page 320 held a defendant may not use section 425.16 to strike a n ac tion based on speech or petitioning activity that is illegal

. But this exception applies at the first s tep only if “ the d efend ant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was ille gal as a matter of law. ” ( Flatley , at p. 320 ; a ccord, City of Montebello v. Va squez (2016)

1 Cal.5t h 409, 424 ; Towner v. County of Ventura (2021)
63 Cal.App.5th 761, 771 .) That is not the case here . F ar from admitting his conduct was illegal, Beltran has expre ssly denie d
he made the threatening statements descr ibed in Patel ’ s decl aration.

3. From T

he Earth Has Demonstrated a P robability of Prevailing on the Merits of Its Cause of Action for Extortion To preva il at the second step of a special motion to stri ke, the plaintiff need present evid ence that satisfi es “ only ‘ a minimum level of legal suffic iency and triability. ’ ” ( J a r r o w Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738 .) From
T he E arth unquestionably demonstrated the req uisite minimal

me rit of its claim against Beltran. 5

5 Even th ough the trial court did not reach the question whether From T he E a rth had established the nece ssary minimum probabil ity of pr evailing on the merits

, b ecause review14 Extor tion “ r equires a n unla wful use of force or fear with
the intent of achieving a further consequence, the inducement of another person to consent to the actor ’ s obtaining the other ’ s property. ” (

People v. Hesslink (1 985) 1 67 Cal.App.3d 781, 789

- 790 ; s ee Peo

ple v. Sales (20 04) 116 Cal.App.4t h 74 1, 749 [ “ [t]he
elements of the crime of attempted ex tortion are (1) a specific intent to commit extortion and (2) a direct ineffectual act done

t owards its commissio n ” ]; see ge nerally CALCRIM No. 1830 .)
F rom T he Eart h presented evid ence (Patel ’ s declara tion
and attached exhibi ts) th at Beltran threatene d to ensure the
denial of the company ’ s cannabis license application unless From
T he Earth retained him as a lobbyist to assis t in the application

process

— a threa t that was reinforced b y the City ’ s Novembe r 30,
2018 email that ind icated Beltran had already been in contact with the City regarding the application. Beltran ’ s actions, if proved at trial, would support a finding of a ttempted extortion
under Pena l Code section s 518
, 519 a n d 5 23

. Accepting this evidence as true, as we m ust when evaluating a sect ion 42 5 .1 6 special motion to strike

, From T he Earth has stated a l egally
sufficient claim and m ade a prima facie f actual showi ng suffi cient to sustain a favorable judgme nt. Be ltran ’ s response is insuffi cient to defea t From T he
E arth ’ s evidentiary showing . His denial that he made
threat ening statements suggesting unlawful interference with the City ’ s evaluation of From T he Eart h ’ s li ce nse application if he
was not retai ned a s a lobbyis t , as described b y Pa tel , of course, merely e stablishe d a conflict that cannot be resolved at this stage

on appeal is de novo, we properly address the issue

. ( Roberts v. Los Ang eles County Bar Assn. (2003) 105 Cal.Ap p.4th 604, 615

- 616 .)15

of the proceedings. Similarly, alth ough Beltran ’ s specific intent to commit extortion, an e lement o f the crime, was not established
b y Patel ’ s declara tion, it may be r easonably inferred from the
statements and conduct att ested to by Pa tel , at least for purposes of establishing the extortion claim ’ s minimal merit . Finally,
whether or not Be ltran is corr ect that his communications with
th e City concernin g cann abis licens es are p rivileged under C ivi l Code section 47, subdivi sion (b) , From T he Earth ’ s cause of action is predicated on the decidedly unprivileged statements and
emails between Beltran a nd Patel and the subsequent acti on by
the C ity in den ying F rom The Earth ’ s application for commercial
cannabis licenses

. D ISPO SITION

The order denyin g Beltran ’ s speci al motion to str ike is
affirmed. From T he Ea rth is to recover its costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.