Filed 10/17/22 From The 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115.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,

Defendant and Appellant.

 B310055

 (Los Angeles County

 Super. Ct. No. 20STCV36221)

APPEAL from an order of the Superior Court of Los 

Angeles County. Michael P. Linfield, Judge. Affirmed.

Urtnowski & Associates, J. Brian Urtnowski and Lisamarie 

McDermott for Plaintiff and Respondent. 

Law Office of Jose Luis Fuentes and Jose Luis Fuentes for 

Defendant and Appellant.

________________________________
2

The City of Commerce denied commercial cannabis licenses

to From The Earth, LLC after the company refused to participate 

in an alleged extortion and kickback scheme operated by Mario 

Beltran, a cannabis lobbyist. From The Earth sued Beltran and 

the City, alleging Beltran had colluded with the City in an 

attempt to extort From The Earth and the City had violated 

From The Earth’s right to equal protection by denying its license 

application on pretextual grounds while approving cannabis 

licenses for similar applicants. Beltran filed a special motion to 

strike the extortion cause of action (Code Civ. Proc., § 425.16),

1

contending his conduct constituted protected petitioning activity

under the statute and From The Earth could not establish a 

probability of prevailing on the merits. The trial court denied the 

motion, ruling the cause of action against Beltran for extortion 

did not arise from protected activity. Although we disagree with 

the trial court’s reasoning, because From The Earth established

the requisite minimum probability of prevailing on the merits, we

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. From The Earth’s Unsuccessful Application for Cannabis 

Licenses

In a declaration filed with From The Earth’s opposition to 

Beltran’s special motion to strike, Kintu Patel, a founding 

member and manager of the company, described the factual 

background of From The 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 this code unless otherwise 

stated.
3

cultivation, manufacturing and distribution business licenses. As

part of its application From The Earth completed a mapping 

report verifying that its proposed business location was more 

than 600 feet from any schools, daycares, parks and youth 

centers as required by the City’s municipal code.

On October 31, 2018 the City notified From The Earth its 

application had been successfully submitted and was being

advanced to phase two of the application process. On 

November 7, 2018 the City notified From The Earth it was a 

“qualified applicant” and its application had advanced to the 

third and final phase, city council consideration.

Around the time of the City’s November 7, 2018 notice, 

Beltran telephoned Patel. Patel’s declaration stated he 

understood Beltran was a former City of Bell councilmember with

a criminal record and a reputation for attempting to assert 

influence in cities that were awarding cannabis licenses. 

According to Patel, Beltran stated, if From The Earth did not 

engage him as a lobbyist for its application process and pay 

Beltran certain kickbacks, he would ensure the City would deny 

From The Earth’s cannabis license application. (Beltran denies 

making any such threat.) From The Earth did not respond to or 

engage Beltran’s services.

On November 16, 2018 the City sent From The Earth a

conditional “Notice of Selection,” stating the city council had 

voted to authorize From The Earth to continue to advance 

through the permit process “in order to ultimately establish a 

lawful commercial cannabis business in the City.” The Notice of 

Selection was contingent on From The Earth fulfilling all 

applicable requirements, including obtaining a recommendation 

of approval from the city planning commission and the city 
4

council’s final approval of From The Earth’s development 

agreement.

On November 30, 2018 Beltran emailed From The Earth 

and attached a proposed contract. Among other things the 

contract required From The Earth to make an initial payment of 

$50,000 to Beltran upon award of the permits, pay Beltran

$2,500 per month, for an indefinite amount of time, and 

encumber any future purchaser of From the Earth’s business 

with the obligation to pay Beltran $2,500 monthly (or 

alternatively, pay Beltran 10 percent of the purchase price), in 

exchange for which 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 and return the contract 

within 24 hours.

Within minutes of From The Earth receiving Beltran’s 

email and contract on November 30, the City sent an email 

notifying From The Earth it was authorized to apply for a

temporary business license to engage in commercial cannabis 

activities. The City addressed this email to two principals of 

From The Earth and to “Mario”—Beltran’s first name. From The 

Earth had neither retained Beltran nor notified the City that it 

had any relationship to him.

Patel immediately asked the City to remove Beltran from 

any future correspondence with From The Earth. The following 

day Patel told Beltran that From The Earth would not retain him 

for any lobbying services.

On February 13, 2019 the City’s planning commission voted 

to recommend the city council deny From The Earth’s 

application. On April 30, 2019 the city council considered and 
5

denied From The Earth’s application for commercial cannabis 

licenses.

2. From The Earth’s Complaint 

From The Earth sued the City and Beltran on 

September 22, 2020 alleging the City and Doe defendants had 

violated its Fourteenth Amendment right to equal protection and 

Beltran and Doe defendants were liable for extortion. The 

complaint detailed the steps taken by From The Earth to obtain

approval of its commercial cannabis licenses, Beltran’s efforts to 

be retained by From The Earth and his implied threats of 

adverse consequences if it did not hire him and the ultimate

decision by the City to deny From The Earth’s application. In 

particular, paragraph 25 of the complaint alleged, “Defendant 

Beltran made threats to Plaintiff’s business interest through both 

telephonic and written communication by [sic] when they told 

Plaintiff that if Plaintiff did not engage defendant Beltran as its 

lobbyist for Plaintiff’s Business License Application process and 

not pay certain kickbacks to defendant Beltran, defendant 

Beltran would ensure that defendant City of Commerce would 

deny all of the Cannabis Licenses Plaintiff sought. . . . Defendant 

Beltran had his connection to carry out his threats to Plaintiff 

displayed in an email defendant City of Commerce sent to 

Plaintiff, which feigned a presupposition that Plaintiff had 

agreed to the engage in the illegal kickback scheme with 

defendant Beltran.”

3. The Special Motion To Strike

Beltran filed a section 425.16 special motion to strike the 

cause of action for extortion on October 28, 2020. In his motion 

Beltran argued his offer of lobbying services to From The Earth 

in connection with the company’s pending cannabis license
6

application and his communications with the City related to 

cannabis licenses were protected speech or petitioning activity. 

In addition, he contended, his communications on which From 

The Earth’s cause of action was based were absolutely privileged 

under Civil Code section 47, subdivision (b)(1) and (3).

In its opposition to the motion From The Earth submitted 

Patel’s declaration, described in a preceding section, and argued 

extortion is not a protected form of speech; Beltran’s 

communications with From The Earth were not made in 

connection with an issue of public interest; and his speech was 

not privileged 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 issue presented 

here is simple: is an alleged extortion scheme protected by the 

anti-SLAPP statute. The answer is equally simple: No.”

The court explained, “Defendant fails to meet his initial 

burden to make a prima facie showing that the gravamen of 

Plaintiff’s allegations against Defendant are protected by Code of 

Civil Procedure section 425.16. Contrary to Defendant’s 

assertion, the gravamen of Plaintiff’s claim against him are not 

based on speech or writing made in connection with an issue 

under review or consideration by an official proceeding with the 

City of Commerce’s city council. Instead, the gravamen of

Plaintiff’s claim against Defendant Beltran is that Defendant

Beltran made telephonic and written threats to Plaintiff,

threatening that if Plaintiff did not use Defendant Beltran’s

lobbying services, then Defendant Beltran would retaliate

against Plaintiff and ensure that Defendant City of Commerce

would deny the cannabis licenses Plaintiff applied to receive from 

Defendant City of Commerce. [Citation.] [¶] Defendant has 
7

failed to meet his initial burden to demonstrate how these 

allegations, central to Plaintiff’s claim for extortion against 

Defendant, arise from protected activity pursuant to the antiSLAPP statute.”

2

Beltran filed a timely notice of appeal.

DISCUSSION

1. The Special Motion To Strike: Governing Law and 

Standard of Review

Section 425.16, commonly known as the anti-SLAPP 

statute, makes available a special motion to strike certain 

meritless claims early in the litigation: “A cause of action against 

a person arising from any act of that person in furtherance of the 

person’s right of petition or free speech under the United States 

Constitution or the California Constitution in connection with a 

public issue 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); see Rand Resources, LLC v. City of Carson 

(2019) 6 Cal.5th 610, 619-620 [“[a] court may strike a cause of 

2 Several weeks after denying Beltran’s motion, the trial 

court denied the City’s special motion to strike. We affirmed that 

order in a nonpublished opinion earlier this year (From The 

Earth, LLC v. City of Commerce (Mar. 15, 2022, B311070)), 

holding the City’s decision to deny From The Earth’s cannabis

business license application, the basis for its equal protection

claim, did not arise from protected activity. (See Shahbazian v.

City of Rancho Palos Verdes (2017) 17 Cal.App.5th 823, 836-837 

[in analyzing a claim based on discriminatory governmental 

action, the court must distinguish between challenges to 

government decisions and statements that may have led to those 

decisions].)
8

action only if the cause of action (1) arises from an act in 

furtherance of the right of petition or free speech ‘in connection 

with a public issue,’ and (2) the plaintiff has not established ‘a 

probability’ of prevailing on the claim”].)

Pursuant to section 425.16, subdivision (e), an “‘act in 

furtherance of a person’s right of petition or free speech under the 

United States or California Constitution in connection with a 

public issue’ includes: (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, (3) any written or oral statement or writing 

made in a place open to the public or a public forum in connection 

with an issue of public interest, or (4) any other conduct in 

furtherance of the exercise of the constitutional right of petition 

or the constitutional right of free speech in connection with a 

public issue or an issue of public interest.”

In ruling on a special motion to strike under section 425.16, 

the trial court engages in a now-familiar two-step process. “First, 

the defendant must establish that the challenged claim arises 

from activity protected by section 425.16. [Citation.] If the 

defendant makes the required showing, the burden shifts to the 

plaintiff to demonstrate the merit of the claim by establishing a 

probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 

384; accord, Bonni v. St. Joseph Health System (2021) 11 Cal.5th 

995, 1009 (Bonni); Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1061 (Park).) 
9

“A claim arises from protected activity when that activity 

underlies or forms the basis for the claim.” (Park, supra, 

2 Cal.5th at p. 1062.) Thus, “[t]he defendant’s first-step burden is 

to identify the activity each challenged claim rests on and

demonstrate that that activity is protected by the anti-SLAPP 

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

activity itself is the wrong complained of, and not just evidence of 

liability or a step leading to some different act for which liability 

is asserted.’” (Wilson v. Cable News Network, Inc. (2019) 

7 Cal.5th 871, 884 (Wilson); see Bonni, supra, 11 Cal.5th at 

p. 1009 [“[t]he defendant’s burden is to identify what acts each 

challenged claim rests on and to show how those acts are 

protected under a statutorily defined category of protected 

activity”]; Park, at p. 1060.)

“As to the second step inquiry, a plaintiff seeking to 

demonstrate the merit of the claim ‘may not rely solely on its 

complaint, even if verified; instead, its proof must be made upon 

competent admissible evidence.’” (Sweetwater Union High School 

Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940;

3 accord, 

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

have described this second step as a “summary-judgment-like 

procedure.” [Citation.] The court does not weigh evidence or 

resolve conflicting factual claims. Its inquiry is limited to 

3 Although the Supreme Court in Sweetwater Union High 

School Dist. v. Gilbane Building Co., supra, 6 Cal.5th 931 

referred generally to “competent admissible evidence,” the Court 

held certain types of evidence, potentially admissible at trial but 

not presented in admissible form, could be considered in 

determining whether the plaintiff had demonstrated a probability 

of success on the merits. (Id. at p. 949; see Sanchez v. Bezos 

(2022) 80 Cal.App.5th 750, 770-779.)
10

whether the plaintiff has stated a legally sufficient claim and 

made a prima facie factual showing sufficient to sustain a 

favorable judgment. It accepts the plaintiff’s evidence as true, 

and evaluates the defendant’s showing only to determine if it 

defeats the plaintiff's claim as a matter of law.’” (Monster 

Energy, at p. 788; see Taus v. Loftus (2007) 40 Cal.4th 683, 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 support for the 

claim’”].)

We review de novo an order granting or denying a special 

motion to strike under section 425.16. (Wilson, supra, 7 Cal.5th 

at p. 884; Park, supra, 2 Cal.5th at p. 1067.) 

2. From The Earth’s Cause of Action for Extortion Arose 

from Protected Speech or Petitioning Activity

From The Earth’s cause of action for extortion is expressly 

based on Penal Code section 523, which provides in 

subdivision (a), “Every person who, with intent to extort property 

or other consideration from another, sends or delivers to any 

person any letter or other writing, whether subscribed or not, 

expressing or implying, or adapted to imply, 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 such threat.” (See Pen. Code, §§ 518 [“[e]xtortion is the 

obtaining of property or other consideration from another, with 

his or her consent . . . induced by a wrongful use of force or fear”], 

519 [“[f]ear, such as will constitute extortion, may be inducted by 

a threat,” including a threat “[t]o do an unlawful injury to the 

person or property of the individual threatened or of a third 

person”]; Flatley v. Mauro (2006) 39 Cal.4th 299, 326 [“‘the 
11

legislature in denouncing the wrongful use of fear as a means of 

obtaining property from another had in mind threats to do the 

acts specified in section 519, the making of which for the purpose 

stated is declared to be a wrongful use of fear induced 

thereby’”].)4

From The Earth’s complaint alleged that Beltran’s offer of

his lobbying services included the threat that, if he was not 

retained and paid as specified in his proposed contract, he would 

ensure the City denied the licenses sought by From The Earth. 

The credibility of this threat of interference in the approval 

process, From The Earth further alleged, was demonstrated by 

the City’s email, received immediately after Beltran sent the 

proposed contract, that included Beltran as one of the addressees, 

4 The court of appeal in Fuhrman v. California Satellite

Systems (1986) 179 Cal.App.3d 408, disapproved on another

ground in Silberg v. Anderson (1990) 50 Cal.3d 205, 217-218,

recognized the crime of extortion can form the basis for a civil

action in tort. “However denominated (e.g., extortion, menace,

duress), our Supreme Court has recognized a cause of action for

the recovery of money obtained by the wrongful threat of criminal

or civil prosecution. [Citations.] It is essentially a cause of action

for moneys obtained by duress, a form of fraud.” (Id. at p. 426;

see generally Rest.2d Torts, § 871 & com. a [“[o]ne who 

intentionally deprives another of his legally protected property 

interest or causes injury to the interest is subject to liability to 

the other if his conduct is generally culpable and not justifiable 

under the circumstances”; this rule “is applicable to duress in a 

great variety of situations”].) Although Beltran argues From The 

Earth has not adequately pleaded a cause of action for civil 

extortion, he does not contend attempted extortion as defined in

the Penal Code is not a valid basis for a civil cause of action.
12

thereby indicating Beltran had already communicated with the

City regarding the license application. 

Beltran’s communications to From The Earth in an attempt 

to be retained to lobby in support of its license application (with

the alleged accompanying threats) are the wrong complained of, 

not simply “evidence of liability or a step leading to some 

different act for which liability is asserted.” (Park, supra,

2 Cal.5th at p. 1060.) Those efforts—an essential element of the 

cause of action for civil extortion—are properly considered an 

aspect of protected petitioning activity—statements made in 

connection with an issue pending in an official proceeding within

the meaning of section 425.16, subdivision (e)(2). As alleged by 

From The Earth, Beltran’s phone calls and emails all explained 

how he could influence the City’s decision on the pending 

application. Nothing more was needed for Beltran to make the 

required first step showing. (Cf. Rand Resources, LLC v. City of 

Carson, supra, 6 Cal.5th at p. 629 [lobbying “communications—

designed to influence the City’s renewal decision while the

renewal application [for a contract granting exclusive agency to

negotiate with the NFL regarding a stadium development] was 

pending—are reasonably considered communications ‘in 

connection with an issue under consideration or review by a 

legislative . . . body’ within the meaning of subdivision (e)(2)”].) 

That “[e]xtortion is not a constitutionally protected form of 

speech” (Flatley v. Mauro, supra, 39 Cal.4th at p. 328) and 

Beltran’s actions were allegedly part of a collusive extortion

scheme with the City does not affect our first-step analysis. “If 

conduct that supplies a necessary element of a claim is protected, 

the defendant’s burden at the first step of the anti-SLAPP 

analysis has been carried, regardless of any alleged motivations 
13

that supply other elements of the claim.” (Wilson, supra, 

7 Cal.5th at p. 892 [concluding that “for anti-SLAPP purposes 

discrimination and retaliation claims arise from the adverse 

actions allegedly taken, notwithstanding the plaintiff’s allegation 

that the actions were taken for an improper purpose”].) 

To be sure, as From The Earth argues, 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 an action based on

speech or petitioning activity that is illegal. But this exception 

applies at the first step only if “the defendant concedes, or the 

evidence conclusively establishes, that the assertedly protected 

speech or petition activity was illegal as a matter of law.” 

(Flatley, at p. 320; accord, City of Montebello v. Vasquez (2016) 

1 Cal.5th 409, 424; Towner v. County of Ventura (2021) 

63 Cal.App.5th 761, 771.) That is not the case here. Far from 

admitting his conduct was illegal, Beltran has expressly denied

he made the threatening statements described in Patel’s 

declaration. 

3. From The Earth Has Demonstrated a Probability of 

Prevailing on the Merits of Its Cause of Action for 

Extortion

To prevail at the second step of a special motion to strike, 

the plaintiff need present evidence that satisfies “only ‘a 

minimum level of legal sufficiency and triability.’” (Jarrow

Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 738.) From

The Earth unquestionably demonstrated the requisite minimal

merit of its claim against Beltran.5

5 Even though the trial court did not reach the question 

whether From The Earth had established the necessary

minimum probability of prevailing on the merits, because review 
14

Extortion “requires an unlawful 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 (1985) 167 Cal.App.3d 781, 789-

790; see People v. Sales (2004) 116 Cal.App.4th 741, 749 [“[t]he 

elements of the crime of attempted extortion are (1) a specific 

intent to commit extortion and (2) a direct ineffectual act done

towards its commission”]; see generally CALCRIM No. 1830.) 

From The Earth presented evidence (Patel’s declaration 

and attached exhibits) that Beltran threatened to ensure the 

denial of the company’s cannabis license application unless From 

The Earth retained him as a lobbyist to assist in the application 

process—a threat that was reinforced by the City’s November 30, 

2018 email that indicated Beltran had already been in contact 

with the City regarding the application. Beltran’s actions, if 

proved at trial, would support a finding of attempted extortion

under Penal Code sections 518, 519 and 523. Accepting this 

evidence as true, as we must when evaluating a section 425.16

special motion to strike, From The Earth has stated a legally 

sufficient claim and made a prima facie factual showing sufficient 

to sustain a favorable judgment. 

Beltran’s response is insufficient to defeat From The 

Earth’s evidentiary showing. His denial that he made 

threatening statements suggesting unlawful interference with

the City’s evaluation of From The Earth’s license application if he 

was not retained as a lobbyist, as described by Patel, of course,

merely established a conflict that cannot be resolved at this stage 

on appeal is de novo, we properly address the issue. (Roberts v.

Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-

616.)
15

of the proceedings. Similarly, although Beltran’s specific intent 

to commit extortion, an element of the crime, was not established 

by Patel’s declaration, it may be reasonably inferred from the

statements and conduct attested to by Patel, at least for purposes 

of establishing the extortion claim’s minimal merit. Finally, 

whether or not Beltran is correct that his communications with 

the City concerning cannabis licenses are privileged under Civil 

Code section 47, subdivision (b), From The Earth’s cause of action 

is predicated on the decidedly unprivileged statements and 

emails between Beltran and Patel and the subsequent action by 

the City in denying From The Earth’s application for commercial 

cannabis licenses. 

DISPOSITION

The order denying Beltran’s special motion to strike is 

affirmed. From The Earth is to recover its costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.