Filed 11/30/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

JASON FLICKINGER,

Plaintiff and Respondent,

v.

GORDON J. FINWALL,

Defendant and Appellant.

 B322736

 Santa Clara County

 Super. Ct. No. 19CV355773

APPEAL from an order of the Superior Court of Santa 

Clara County. Christopher G. Rudy, Judge. Reversed and 

remanded with instructions.

Murphy, Pearson, Bradley & Feeney, Jonathan M. Blute 

and Jackson L. Stogner for Defendant and Appellant.

Gates Eisenhart Dawson, Marc A. Eisenhart, James L. 

Dawson, Steven D. McLellan and Claire A. Melehani for Plaintiff 

and Respondent.

___________________________
2

This is an appeal from an order denying defendant 

Gordon J. Finwall’s motion to strike plaintiff Jason Flickinger’s 

causes of action against him pursuant to the anti-SLAPP statute, 

section 425.16 of the Code of Civil Procedure.1 There is no

dispute that defendant’s underlying conduct was in furtherance 

of petitioning activity within the meaning of section 425.16, 

subdivision (b)(1). But the trial court concluded defendant’s 

prelitigation letter responsive to a demand from plaintiff’s 

counsel amounted to extortion as a matter of law so as to deprive 

it of section 425.16 protection under Flatley v. Mauro (2006) 

39 Cal.4th 299, 320 (Flatley).

We interpret Flatley as holding an attorney’s prelitigation 

communication is extortion as a matter of law only where the 

attorney’s conduct falls entirely outside the bounds of ordinary 

professional conduct. We find that defendant’s letter falls within 

the boundaries of professional conduct and therefore the Flatley

exception to anti-SLAPP protection does not apply. We therefore 

conclude that defendant made a prima facie showing under the 

first prong of the anti-SLAPP analysis.

Even though the trial court declined to reach it, we exercise 

our discretion to consider the second prong of the anti-SLAPP 

analysis and conclude that plaintiff failed to meet his burden to 

show a probability of prevailing on his causes of action. The sole 

cause of action that plaintiff defends on appeal is for civil 

extortion. We agree with defendant that the litigation privilege 

defeats this cause of action.

Accordingly, we reverse the order of the trial court and 

remand with instructions to grant defendant’s motion and award 

1 SLAPP is the acronym for “strategic lawsuit against public 

participation.” All further undesignated statutory references are 

to the Code of Civil Procedure. 
3

defendant fees and costs pursuant to section 425.16, 

subdivision (c)(1). 

BACKGROUND

Plaintiff is a homeowner. In 2014 he engaged a contractor, 

Robert Pendergrast, to remodel or otherwise improve various 

parts of his property. In early 2015, after Pendergrast had 

already done extensive work on the home, he agreed to remodel 

plaintiff’s kitchen for an additional $60,000 in cash.

Several months later, while the kitchen work was still 

ongoing, plaintiff had Pendergrast over one evening for a social 

visit. During the visit, plaintiff, while “very drunk,” confided to 

Pendergrast that plaintiff had gotten the cash to fund the 

remodeling project illegally. Plaintiff, who was an employee of 

Apple, told Pendergrast he had taken kickbacks from Apple 

vendors while on business in China. Despite this, Pendergrast 

continued working for plaintiff.

A month or so later, in early 2016, Pendergrast observed 

plaintiff in his living room counting what Pendergrast estimated

to be $1 million in cash. Pendergrast still continued working for 

plaintiff.

In March 2016, plaintiff gave Pendergrast $900 in cash and 

asked him to buy computer equipment with it, ostensibly as part 

of the remodeling project. To Pendergrast, the request seemed 

like an effort to further involve Pendergrast in plaintiff’s money 

laundering scheme. Upset, Pendergrast walked off the job, 

leaving plaintiff’s kitchen in a state of disarray.

According to plaintiff’s declaration, Pendergrast told 

plaintiff upon leaving that there were “a lot of electrical things he 

did to [plaintiff’s] house that only [Pendergrast] kn[ew] about and 

[plaintiff] need[ed] to pay him to fix them.” After plaintiff 

demanded to see building permits that Pendergrast had not 

obtained, things got worse. Plaintiff threatened to “report” 
4

Pendergrast, and Pendergrast responded with a threat to expose 

compromising photographs of plaintiff with a colleague. 

About three months later, Pendergrast left plaintiff a 

voicemail—plaintiff does not say what prompted it or what had 

transpired in the intervening months—reiterating that he “[had] 

pictures” and further stating he was “working with somebody for 

Apple with the fraud department,” adding, among other things,

“don’t f*** with me.” Nonetheless, plaintiff invited Pendergrast 

to his house two days later to discuss the work that remained 

unfinished in his home. Plaintiff does not say whether that 

meeting occurred. If it did, it failed to resolve things between the 

men.

About six months later, plaintiff, through counsel, made a 

demand on Pendergrast for $125,000, presumably representing 

his claimed cost to finish the remodeling work. On December 14, 

2016, Pendergrast responded through counsel—defendant 

herein—in a letter rejecting the demand. After cataloging other 

complaints plaintiff had already made against Pendergrast—with 

the California Labor Commissioner and the Contractors State 

License Board—defendant’s letter turned to the merits of 

plaintiff’s threatened litigation:

“[Y]ou mention that Mr. Pendergrast was involved in 

construction activities at [plaintiff’s] home. However, 

Mr. Pendergrast was not operating as a general contractor and 

[plaintiff] made his own decision to not pull permits. . . . The 

relationship ended when Mr. Pendergrast determined it was 

likely that [plaintiff] was laundering ill-gotten money obtained 

while in the employ of Apple. [¶] I am not sure how you came up 

with the figure of $125,000. This outrageous demand appears 

like a threat to further torment Mr. Pendergrast by all means 

possible, and [plaintiff] has already made retaliatory claims to 

the Labor Commissioner and [Contractors State License Board] 
5

and now he makes another one through you. If [plaintiff] 

initiates litigation, Mr. Pendergrast’s position will not change 

and he will aggressively defend himself. I suggest you discuss 

with [plaintiff] how such litigation may result in Apple opening 

an investigation into [plaintiff’s] relationships with vendors.” 

The lawyers’ exchange did not lead to a settlement. 

Plaintiff sued Pendergrast in Santa Clara Superior Court in 

2017, commencing what we call Flickinger I. (Flickinger v. 

Pendergrast (Super. Ct. Santa Clara County, 2019, 

No. 17CV306836).)

1. Flickinger I

Plaintiff asserted just one cause of action—breach of 

contract—against Pendergrast in Flickinger I. One aspect of the

alleged breach was that Pendergrast agreed, but failed, to obtain 

building permits for plaintiff’s kitchen remodel. Pendergrast’s 

defenses relied in large part on the allegation, previewed in 

defendant’s December 2016 letter, that plaintiff told him not to 

obtain permits. In a signed interrogatory response, Pendergrast 

stated: “[Plaintiff] advised [Pendergrast] not to obtain a building 

permit for the kitchen remodel. [Plaintiff] did not want a permit 

because he did not want a public record of his expenditures as he 

was spending beyond his means. While on company business for 

Apple in China, he had received large illegal under the table cash 

payments from an Apple vendor and carried the cash, 

unreported, back to the United States. He was using the illgott[e]n cash to pay [Pendergrast] and other expenses.” 

Defendant sought to substantiate these allegations through 

discovery. He deposed plaintiff, asking a number of questions 

about his Apple-related overseas vendor contacts. Plaintiff 

refused to answer these questions based on his Fifth Amendment 

right against self-incrimination. Defendant then subpoenaed 

Apple for records relevant to plaintiff’s dealings with Apple 
6

vendors. Apple objected on relevance grounds. Defendant met 

and conferred with Apple’s counsel, explaining the relationship 

between Pendergrast’s unclean hands defense and plaintiff’s 

work for Apple. When his explanation failed to persuade Apple to 

turn over any records, defendant dropped the matter and stopped

communicating with Apple. 

Even without the Apple documents, defendant prepared 

and submitted a proposed statement of decision for Pendergrast

in Flickinger I alluding to the kickback allegations. This 

included the proposed factual finding that “[w]hile [Pendergrast] 

had obtained a building permit for the 2014 home addition

project, [plaintiff] instructed [Pendergrast] not to obtain a permit 

for the kitchen remodel. [Plaintiff] informed [Pendergrast] at the 

outset that he did not want a permit so as not to create a public 

record of spending beyond his means.” He then referred back to 

this fact in support of the affirmative defenses of illegality 

unclean hands, equitable estoppel, and waiver.

The Flickinger I trial court ruled in favor of plaintiff. In 

explaining the basis for its decision,

2 it repeatedly addressed 

disputed facts about why there were no building permits for 

plaintiff’s kitchen remodel. For example, it summarized 

plaintiff’s testimony regarding the key elements of the contract 

between plaintiff and Pendergrast as follows: “(1) [Pendergrast] 

was to complete all work up to code, (2) [Pendergrast] was to 

obtain all necessary permits and inspections, and 

(3) [Pendergrast] was to complete the work in a workmanlike 

2 We grant plaintiff’s request for judicial notice, which 

includes the statement of decision by the Flickinger I court. 

Defendant did not oppose plaintiff’s request and we agree with 

plaintiff that the trial court below relied in part on the 

Flickinger I court’s analysis in rendering its decision, even 

though the analysis was not formally made part of the record.
7

manner.” (Italics added.) At the same time, it recognized 

Pendergrast’s assertion that “[p]laintiff did not obtain permits so 

as to hide the expenditure of cash for home improvements [and] 

acted in a deliberate way to prevent a public record of his 

spending.” 

Without resolving the factual conflict, the Flickinger I trial 

court laid the blame for not getting permits with Pendergrast 

based on his status as a licensed professional. It deemed—

without citation to on-point authority—Pendergrast’s failure a 

breach as a matter of law without regard to any terms of the 

actual agreement between the parties. The court rejected 

Pendergrast’s affirmative defenses of unclean hands, equitable 

estoppel, and waiver. It relied on Pendergrast’s status as a 

licensed professional to reject his arguments that plaintiff bore 

some responsibility for the lack of permits because plaintiff had 

instructed Pendergrast not to get them. Again, the trial court 

cited no on-point authority for the proposition that plaintiff’s 

instruction to Pendergrast not to get permits, if proven, was 

irrelevant as a matter of law to his defenses. 

The court imposed on Pendergrast the costs of completing 

the job as fully permitted and inspected, including the costs of 

removing walls and other demolition that was necessary to allow 

inspection of Pendergrast’s work. It awarded plaintiff a total of 

$169,000 in general damages.

Defendant represents, and plaintiff does not dispute, that 

at no point in Flickinger I was there any allegation by plaintiff or 

finding by the court of bad faith or abuse of process with respect 

to defendant asserting affirmative defenses related to plaintiff’s 

illegal funding for the project, nor for asking plaintiff about the 

funding in his deposition, nor for seeking discovery from Apple.
8

2. Flickinger II

While Flickinger I was still pending, plaintiff filed a second 

action relating to other work Pendergrast did on his home, this 

time suing both Pendergrast and defendant. This appeal arises 

from this second action. Only plaintiff’s causes of action against 

defendant are relevant to this appeal. These are (1) civil 

extortion, and (2) violation of the Ralph Civil Rights Act, Civil 

Code section 52. Each is based on allegations that defendant 

“used threats, intimidation, and coercion to prevent [p]laintiff 

from filing [Flickinger I]” based on defendant’s December 2016

letter to plaintiff’s counsel responding to his prelitigation 

demand. 

Defendant filed an anti-SLAPP motion to strike plaintiff’s 

causes of action and plaintiff opposed it. The trial court denied 

defendant’s motion on the basis that defendant’s December 2016

letter amounted to extortion and was therefore unprotected 

activity under Flatley, supra, 39 Cal.4th 299. 

Defendant timely appealed pursuant to section 904.1, 

subdivision (a)(13).

DISCUSSION

1. Standard of Review

We review a trial court’s order granting an anti-SLAPP 

motion de novo, considering the pleadings and affidavits 

submitted in support of, or in defense to, the subject claims. 

(Verceles v. Los Angeles Unified School District (2021) 

63 Cal.App.5th 776, 785.)

2. Overview of the Anti-SLAPP Statute

The anti-SLAPP statute provides a mechanism for early

assessment of claims implicating certain protected speech

activities. Qualifying claims found to be without merit must be

stricken and costs and expenses awarded to the defendant. 

(§ 425.16, subd. (c)(1).) This relieves defendants wrongfully sued
9

for engaging in protected activities of the time and expense of

litigation.

The statute imposes on the defendant an initial burden to

show the challenged claims qualify for protection under the

statute. (§ 425.16, subd. (b)(1).) If the defendant satisfies this

burden, the plaintiff then bears the burden to establish a

probability of prevailing on the challenged claims. (Ibid.)

The statute applies only to claims “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.” (§ 425.16,

subd. (b)(1).) Such acts are broken into four illustrative

categories of conduct in section 425.16, subdivision (e).

Due to the important interests it seeks to protect, the

Legislature commands that we construe the anti-SLAPP statute

broadly. (§ 425.16, subd. (a); Navellier v. Sletten (2002)

29 Cal.4th 82, 92.) However, “not all speech or petition activity is

protected by section 425.16.” (Flatley, supra, 39 Cal.4th at

p. 313.) Of relevance here, section 425.16 does not protect

“speech or petition activity that [i]s illegal as a matter of law.” 

(Flatley, at p. 320.) We refer to this exception as the “Flatley

exception.” As further discussed below, the Flatley exception

applies only in “narrow circumstance[s]” where “either the

defendant concedes, or the evidence conclusively establishes”

illegality as a matter of law. (Id. at pp. 316, 320.)

3. Analysis

We first consider whether defendant’s December 2016 

letter responding to a prelitigation demand from plaintiff’s 

counsel is protected under section 425.16. We conclude that it is,

and then proceed to consider whether plaintiff met his burden to 

show a likelihood of prevailing on the merits. We are entitled to 

do so even though the trial court did not consider the probability 
10

that plaintiff could prove his claims. (Hecimovich v. Encinal 

School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 

468.)

a. The December 2016 letter was protected 

petitioning activity

Section 425.16 protects any conduct in furtherance of the 

exercise of the constitutional right of petition. (Id., subd. (e)(4).) 

Prelitigation communications may qualify for this protection so 

long as they “ ‘concern[] the subject of the dispute’ and [are] made 

‘in anticipation of litigation “contemplated in good faith and 

under serious consideration . . . .” ’ ” (Neville v. Chudacoff (2008) 

160 Cal.App.4th 1255, 1268.)

There is no dispute that defendant’s December 2016 letter 

satisfies these preliminary requirements. It was written in 

response to a prelitigation demand from plaintiff’s counsel and 

previewed Pendergrast’s litigation posture.

The parties dispute whether defendant’s statement that 

“such litigation may result in Apple opening an investigation into 

[plaintiff’s] relationships with vendors” and corresponding 

reference to “ill-gotten money obtained while in the employ of 

Apple” triggers the Flatley exception, taking it outside the 

protection of section 425.16.

According to plaintiff, this statement is “textbook” extortion

so the Flatley exception applies. Extortion includes “the 

obtaining of property or other consideration from another, with 

his . . . consent . . . , induced by a wrongful use of force or 

fear . . . .” (Pen. Code, § 518, subd. (a).) What constitutes a 

wrongful use of force or fear for these purposes is defined in 

Penal Code section 519 (People v. Beggs (1918) 178 Cal. 79, 83–

84), and includes “a threat . . . . [¶] [t]o expose, or to impute to 

[the person threatened a] disgrace, or crime . . . ” (Pen. Code,

§ 519). 
11

According to defendant, his statement was a permissible 

threat under Malin v. Singer (2013) 217 Cal.App.4th 1283

(Malin), which recognized that certain threats to disclose 

information in litigation do not amount to extortion as a matter 

of law. (Id. at pp. 1298–1299.) 

We discuss these authorities at some length below.

i. Flatley

Flatley, a celebrity dancer, sued Mauro, an attorney, under 

various tort theories based on a letter Mauro sent to Flatley and 

telephone conversations Mauro had with Flatley’s counsel. 

(Flatley, supra, 39 Cal.4th at p. 305.) The question before the 

Supreme Court was whether Mauro’s communications to Flatley 

and his counsel were protected under the anti-SLAPP statute. 

(Flatley, at p. 305.)

Mauro sent the letter to Flatley on behalf of his client who 

claimed her sexual encounter with Flatley in a Las Vegas hotel 

was nonconsensual. (Flatley, supra, 39 Cal.4th at p. 305.) The 

letter was sensational, plainly designed to shock Flatley into 

submission and a large settlement. Among other things, it 

accused Flatley of rape, referenced a police report that evidence 

later showed was a sham, discussed the prospect of punitive 

damages to “ ‘send[] a message,’ ” referred to a recent 

$100 million punitive damages award made in another case, and 

emphasized that Flatley’s personal assets were in peril. (Id. at 

p. 308.) In a follow-up call with Flatley’s lawyer, Mauro

demanded at least $1 million to settle. (Id. at pp. 311, 329.)

The letter further contained specific threats to distribute 

information about Flatley outside the confines of the threatened 

litigation absent a settlement. First, it threatened to use the 

press to generate negative publicity around Flatley. Mauro listed 

not fewer than 18 news sources that would receive a press release 

at the time of suit. (Flatley, supra, 39 Cal.4th at pp. 329, 339.) 
12

In a follow-up call with Flatley’s lawyer, Mauro elaborated that 

he “ ‘already ha[d] the news media lined up’ and would ‘hit 

[Flatley] at every single place he tours.’ ” (Id. at p. 310.) Second, 

it threatened to use information obtained in discovery to expose 

any illegality—including “ ‘violation[s] of any U.S. Federal, 

Immigration, I.R.S., S.S. Admin., U.S. State, Local, 

Commonwealth U.K., or International Laws’ ”—to “ ‘any and all 

appropriate authorities.’ ” (Id. at p. 309, boldface omitted.)

Even the letter’s formatting was outrageous, prompting the 

Supreme Court to take the unusual step of appending it to its 

opinion. (Flatley, supra, 39 Cal.4th at p. 307 & fn. 5.) 

On these facts, the Flatley court found that Mauro’s letter 

and subsequent telephone calls to Flatley’s attorneys constituted 

extortion as a matter of law and therefore were not protected 

under section 425.16. (Flatley, supra, 39 Cal.4th at p. 328.) This 

conclusion rested on five aspects of Mauro’s conduct. 

First, Mauro’s letter contained accusations of criminal 

conduct which he threatened to expose directly “to the 

‘worldwide’ media,” not merely indirectly as a result of 

commencing litigation. (Flatley, supra, 39 Cal.4th at p. 330.)

Second, his threat to expose “criminal activity entirely unrelated 

to any alleged injury suffered by [his] client ‘exceeded the limits 

of [his] representation of his client’ [which was] itself evidence of 

extortion.” (Id. at pp. 330–331.) Third, the Supreme Court found

the threat of a rape allegation was extortion based on evidence 

that Mauro’s client’s initial police report was devoid of content 

and merely a sham designed to “hold a police investigation over 

Flatley’s head.” (Id. at pp. 331–332.) Fourth, Mauro threatened 

that Flatley’s bad acts referenced in his letter “were ‘just the 

beginning,’ ” suggesting that “Flatley would be exposed to various 

kinds of opprobrium and he would be disgraced thereby unless he 

met Mauro’s demands.” (Id. at p. 332.) Fifth, and finally, in his 
13

follow-up calls to Flatley’s counsel, “Mauro did not discuss the 

particulars of the claim or show an interest in negotiations.” 

(Ibid.) Rather, he simply reiterated his demand for payment and 

beat the drum of the consequences if Flatley refused to 

capitulate: Mauro would “ ‘go public’ and ‘ruin’ Flatley . . . .” 

(Ibid.)

The Flatley court went to great lengths to limit the scope of 

the crime-as-a-matter-of-law exception to section 425.16 

protection. It explained that its “conclusion that Mauro’s 

communications constituted criminal extortion as a matter of law 

[was] based on the specific and extreme circumstances of th[e] 

case” and cautioned that its “discussion of what extortion as a 

matter of law is [was] limited to the specific facts of th[e] case.” 

(Flatley, supra, 39 Cal.4th at p. 332, fn. 16.) It further cautioned

that its analysis did not render “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,”

extortion per se. (Ibid.) Rather, petitioning activity can be

criminal extortion as a matter of law for purposes of the Flatley

exception only in the “narrow circumstance” where “the

defendant concedes the illegality of [his] conduct or the illegality

is conclusively shown by the evidence . . . .” (Id. at p. 316.)

ii. Malin

Malin, a restauranteur, sued Singer, an attorney, under 

various tort theories based on a letter Singer sent to Malin. 

(Malin, supra, 217 Cal.App.4th at pp. 1287–1288, 1290.) The 

question on appeal, like in Flatley, was whether Singer’s letter 

was protected under the anti-SLAPP statute. (Malin, at p. 1287.)

Singer sent the letter on behalf of his client, a business 

partner of Malin’s, who claimed Malin had misappropriated 

assets from a company they co-owned. The letter attached a copy 
14

of a proposed complaint and demanded a resolution of the matter 

“to [Singer’s] client’s satisfaction within five (5) business days 

from [Malin’s] receipt of [the letter].” (Malin, supra, 

217 Cal.App.4th at p. 1289.) Importantly, the draft complaint 

contained allegations that Malin used the misappropriated funds 

to arrange sexual encounters with various partners but left blank 

their names. In the demand letter, Singer explained: “ ‘I have 

deliberately left blank spaces in portions of the Complaint 

dealing with your using company resources to arrange sexual 

liaisons with older men such as “Uncle Jerry,” Judge [name 

redacted], a/k/a “Dad” (see enclosed photo), and many others. 

When the Complaint is filed with the Los Angeles Superior 

Court, there will be no blanks in the pleading.’ ” (Ibid., italics 

omitted.)

The Malin court determined that the Flatley exception did 

not apply and Singer was entitled to invoke the protection of 

section 425.16. It reached this conclusion because “Singer’s 

demand letter did not expressly threaten to disclose Malin’s 

alleged wrongdoing to a prosecuting agency or the public at 

large.” (Malin, supra, 217 Cal.App.4th at p. 1298.) The court 

reasoned that the secret that would “expose” Malin to “disgrace” 

for purposes of the extortion statute was “inextricably tied to 

[Singer’s client’s] pending complaint. The demand letter accused 

Malin of embezzling money and simply informed [Malin] that 

[Singer’s client] knew how [Malin] had spent those funds.” (Id. at 

p. 1299.)

In summarizing its conclusion, the Malin court 

distinguished Flatley and another case as follows: “We see a 

critical distinction between Singer’s demand letter, which made 

no overt threat to report Malin to prosecuting agencies or the 

Internal Revenue Service, and the letters in Flatley and Mendoza 

[v. Hamzeh (2013) 215 Cal.App.4th 799], which contained those 
15

express threats and others that had no reasonable connection to 

the underlying dispute.” (Malin, supra, 217 Cal.App.4th at 

p. 1299.)

iii. Why the Flatley exception does not apply

We agree with defendant that the Flatley exception does 

not apply to the facts of this case. Defendant’s letter bears no 

resemblance to the “extreme” conduct in Flatley which warranted 

a “narrow” exception to the protections ordinarily accorded 

petitioning activities under section 425.16. (Flatley, supra,

39 Cal.4th at pp. 316, 332, fn. 16.) 

Flatley recognized that not every threat by an attorney to 

settle or be sued is extortion. (Flatley, supra, 39 Cal.4th at

pp. 316, 332, fn. 16.) We 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. 

Central to the Flatley court’s concerns was that Mauro

threatened to use information obtained through litigation to

report criminal activities “entirely unrelated” to his client’s

claims to any applicable prosecuting agencies. (See Flatley,

supra, 39 Cal.4th at pp. 330–331.) The court had earlier observed

that threatening criminal charges to gain an advantage in a civil

dispute is proscribed by the Rules of Professional Conduct in both

California and Mauro’s licensing state of Illinois. (See Flatley, at

p. 327 & fn. 14.) His threat therefore “ ‘exceeded the limits of

[his] representation of his client’ [which was] itself evidence of

extortion.” (Id. at pp. 330–331.)

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

to the fact that the threat was itself a breach of ethical rules. 

Instead, informed by judicial knowledge of ordinary attorney

behavior, the Flatley court took pains to highlight Mauro’s

behavior that was entirely out of the ordinary. For example, it

stressed Mauro’s threat to not only burden Flatley with court
16

proceedings but with a lifetime of torment: he promised Flatley

negative publicity “ ‘every place he [went] for the rest of his life.’ ” 

(Flatley, supra, 39 Cal.4th at p. 330.) Further, it noted Mauro’s

mode of negotiating fell outside of professional norms. He

focused exclusively on extracting an offer of “ ‘sufficient

payment,’ ” rather than engaging on the merits or particulars of

his client’s claims. (Id. at p. 332.) He set a settlement deadline

four weeks out but then threatened to withdraw it eight days

later if his phone call was not returned in 30 minutes. (Id. at

p. 330.) And even his presentation in the initial demand letter—

riddled with typos and produced with “various font sizes, boldface 

type, capital letters, underlining, and italics” reminiscent more of 

a Hollywood ransom note than professional correspondence—

factored in the court’s analysis. (Id. at p. 307.)

Defendant’s conduct here stands in stark contrast to 

Mauro’s in Flatley. Defendant’s purportedly criminal 

communication was his December 2016 letter, sent to plaintiff’s 

counsel and not to plaintiff directly, in response to a demand 

from plaintiff’s counsel. In it, defendant addressed the merits of 

plaintiff’s claims and offered facts relevant to his client’s claimed 

lack of liability. He made no threat to report plaintiff to any 

prosecuting authorities. His only express “threat” was that his 

client, Pendergrast, would “aggressively defend himself” in 

litigation. The statement from which plaintiff and the trial court 

implied a further threat—defendant’s suggestion that plaintiff’s 

counsel advise plaintiff about how litigation “[could] result in 

Apple opening an investigation into [plaintiff’s] relationships 

with vendors”—is not a threat that Pendergrast would report 

plaintiff to prosecuting authorities, and it does not lie so far 

outside the bounds of professional communication to amount to

criminal extortion as a matter of law.
17

Defendant states by declaration that his reference to Apple 

in the December 2016 letter was meant at face value—that public 

litigation and civil discovery could lead to Apple learning of 

Pendergrast’s kickback allegations and initiating an 

investigation. Although plaintiff says he understood it as a 

threat to go accuse him of a crime, his subjective and self-serving 

interpretation cannot establish extortion as a matter of law. (See 

Cross v. Cooper (2011) 197 Cal.App.4th 357, 387.)

Plaintiff urges us to read Malin as protecting only threats 

to make allegations in a complaint that are “inextricably tied” to 

the complaint’s causes of action, and argues that the illegal 

kickback and money laundering defendant suggested would be 

exposed if plaintiff sued Pendergrast were not even “reasonably 

connect[ed]” to the parties’ dispute. We disagree with both the 

legal and factual premises of plaintiff’s argument.

It is true that the Malin court called the allegations of 

Malin’s sexual activity Singer threatened to disclose in litigation 

“inextricably tied” to the underlying causes of action. (Malin, 

supra, 217 Cal.App.4th at p. 1299.) But in doing so, the court 

suggested a standard that only required them to be “reasonabl[y]

connect[ed]” to be eligible for protection under section 425.16. 

(Malin, at p. 1299.) We agree with the Malin court’s suggested 

standard. In so agreeing, we note our disagreement that the 

threat in Malin to name socially prominent sexual partners, 

complete with pet names, age differences, and gender was 

“inextricably tied” to the allegations that Malin had 

misappropriated company assets. (Ibid.) Though the question is 

not before us, we disagree that these allegations were even 

reasonably connected to the plaintiff’s underlying claims, and 

think the trial court was correct in deeming these same 

allegations “ ‘very tangential to the causes of action in 

Defendants’ complaint’ ” and not subject to protection under 
18

section 425.16. (Malin, at p. 1292, italics added.) Room for such 

disagreement is perhaps inevitable where the inquiry is, per 

Flatley, entirely fact specific. 

The reasonably connected standard is consistent with 

Flatley, where the court singled out as extortion Mauro’s threats 

to disclose information “entirely unrelated” to his client’s claimed 

harms. (Flatley, supra, 39 Cal.4th at pp. 330–331.) A threat that 

is “entirely unrelated” to the merits of the disputed claims is not 

“reasonably connected” to the actionable conduct. But a threat 

does not have to be “inextricably tied” to the merits to avoid a 

finding it is “entirely unrelated.”

An “inextricably tied” standard would encourage attorneys 

to withhold from prelitigation communications a complete picture 

of what their litigation strategy would be. There is no 

requirement that pleadings be limited to only those allegations 

that are “inextricably tied” to the underlying cause of action. 

Attorneys may, and frequently do, include in complaints 

allegations that are not essential to, but bear a reasonable 

connection to, the causes of action in order to provide helpful 

color. Put another way, this is within the realm of ordinary 

professional conduct in litigation. As defendant explains, “it is 

not improper for an attorney to warn his opponent of potential 

adverse consequences of litigation[; n]or is there anything 

improper about leveraging those potential consequences in an 

effort to dissuade one’s opponent from filing suit.” A rule that 

would discourage counsel from engaging in an open prelitigation 

exchange of strategies or draft pleadings would make settlements 

more difficult to achieve. This would contravene the “wellestablished public policy in this state that settlements of 

litigation are favored and should be encouraged.” (Villa v. Cole

(1992) 4 Cal.App.4th 1327, 1338.) 
19

Applying the rule here, we view defendant’s implied threat 

to make public allegations that plaintiff was involved in illegal 

kickback schemes and money laundering as reasonably connected

to the parties’ dispute. As explained above, plaintiff claimed in 

Flickinger I that Pendergrast breached his contract with plaintiff 

by failing to get permits for the kitchen work on plaintiff’s house. 

According to plaintiff, Pendergrast had expressly agreed to get 

such permits. But Pendergrast’s position was that there was no 

breach in this regard because plaintiff agreed Pendergrast would 

not get permits—because plaintiff did not want a public record of 

his spending above his legal means.

With contradictory testimony about why no permits were 

obtained, Pendergrast’s explanation as to why plaintiff allegedly 

told him not to get permits bore a reasonable connection to the 

parties’ dispute. Pendergrast acknowledged that his failure to 

obtain permits “can cause disciplinary problems with the 

[Contractors State License Board],” but argued that “when a 

homeowner directs a contractor not to get a permit and the 

contractor moves forward in reliance on that direction and 

decision, the homeowner is barred from later arguing that the 

contractor should have obtained the permit anyway.” 

The Flickinger I court found Pendergrast “breached the 

contract by failing to obtain all the necessary permits and 

inspections” without deciding whether plaintiff and Pendergrast 

agreed there would be no permits. Rather, it implied 

Pendergrast’s agreement to obtain permits in the contract as a 

matter of law—any contrary agreement notwithstanding—based 

on his status as a professional contractor. But there was no 

suggestion that defendant arguing the parties had agreed not to 

get permits (and alleging the underlying reasons for that 

agreement) was in bad faith.
20

As already noted, the Flickinger I court’s analysis cited no 

direct authority that Pendergrast’s license status implied in his 

contract a promise to get permits even if the parties expressly

agreed he would not. The apparent lack of authority on the topic,

and the materiality of the issue, gave defendant leeway—and

perhaps an obligation—to advance the position most favorable to 

his client. (See § 128.7, subd. (b)(2) [claims, defenses, and legal 

contentions in written submissions to court must only be 

“warranted by existing law or by a nonfrivolous argument for the 

extension, modification, or reversal of existing law or the 

establishment of new law”]; Rules Prof. Conduct, rule 1.3

[imposing limited “reasonable diligence” obligation on attorneys, 

defined to include “act[ing] with commitment and dedication to 

the interests of the client”].) Defendant’s warning in his 

December 2016 letter that he intended to do so was within the 

bounds of professional conduct and therefore not extortion as a 

matter of law.

b. Plaintiff cannot demonstrate a likelihood of 

success on the merits

Plaintiff has forfeited his Ralph Act cause of action on 

appeal by failing to respond to defendant’s arguments that it 

lacks merit. The trial court will dismiss this cause of action on 

remand. Accordingly, we consider only whether the record shows 

plaintiff has a probability of prevailing on his civil extortion 

cause of action. It does not.

A plaintiff cannot show a probability of prevailing on the 

merits of a cause of action for anti-SLAPP purposes where the 

cause of action is barred by the litigation privilege codified in 

Civil Code section 47. (Flatley, supra, 39 Cal.4th at p. 323; 

Digerati Holdings, LLC v. Young Money Entertainment, LLC

(2011) 194 Cal.App.4th 873, 887 (Digerati).) “The litigation 

privilege precludes liability arising from a publication or
21

broadcast made in a judicial proceeding or other official

proceeding. ‘ “The usual formulation is that the privilege applies

to any communication (1) made in judicial or quasi-judicial

proceedings; (2) by litigants or other participants authorized by

law; (3) to achieve the objects of the litigation; and (4) that [has]

some connection or logical relation to the action.” [Citation.] The

privilege “is not limited to statements made during a trial or

other proceedings, but may extend to steps taken prior thereto, or

afterwards.” [Citation.]’ [Citation.] The litigation privilege is 

interpreted broadly in order to further its principal purpose of 

affording litigants and witnesses the utmost freedom of access to 

the courts without fear of harassment in derivative tort actions.

[Citation.] The privilege is absolute and applies regardless of

malice.” (Digerati, at pp. 888–889, fn. omitted.) 

“A prelitigation communication is privileged only if it 

‘relates to litigation that is contemplated in good faith and under 

serious consideration’ [citation] . . . . 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. [Citation.] ‘Whether a 

prelitigation communication relates to litigation that is 

contemplated in good faith and under serious consideration is an 

issue of fact.’ ” (Digerati, supra, 194 Cal.App.4th at p. 889.)

The litigation privilege applies to defendant’s December 

2016 letter. It related to litigation threatened by plaintiff against 

defendant’s client. For the reasons already discussed, the 

statements in the letter bore a connection or logical relation to 

the litigation and advanced Pendergrast’s interest in avoiding the 

litigation. The trial court should have stricken plaintiff’s civil 

extortion claim.
22

c. Defendant’s request for attorney fees

Defendant requests that we award him attorney fees and 

costs under section 425.16, subdivision (c)(1), if he prevails. 

Defendant is correct that, as the prevailing defendant after 

appeal, he is entitled to attorney fees, including those incurred in 

this appeal. (Wanland v. Law Offices of Mastagni, Holstedt & 

Chiurazzi (2006) 141 Cal.App.4th 15, 21–22.) But, in part 

because his fees have continued to accrue through the 

prosecution of this appeal, the record is inadequate for us to do 

so. The trial court will consider defendant’s request on remand.

DISPOSITION

The order is reversed. The matter is remanded and the 

trial court is instructed to grant defendant’s motion to strike 

plaintiff’s causes of action against him for civil extortion and 

violation of the Ralph Act. The trial court shall further consider 

the amount of fees and costs to which defendant is entitled under 

section 425.16, subdivision (c). Defendant is to recover his costs 

on appeal.

GRIMES, J.

WE CONCUR:

STRATTON, P. J.

WILEY, J.