“Pay me or I’m going to the police…” “Pay me or I will tell the press about you…”
Or perhaps someone has filed a lawsuit against you that has an ulterior motive. These actions might or might not be an abuse of process, a tort in the state of California — or worse, the tort (and potential crime) of extortion. Whether you are owed money and frustrated, or are on the receiving end of demands, you may need legal advice.
Extortion is not only a criminal act, but also a tort that may be addressed directly, with or without law enforcement. California’s common law allows for a civil cause of action to recover damages due to extortion – including by the wrongful threat of criminal or civil prosecution or tortious interference. In order to assert a claim for extortion, there must have been a threat of prosecution accompanied by knowledge of the falsity of the claim, and the wronged party must have paid the money demanded. See Fuhrman v. California Satellite Systems (1986), 179 Cal. App. 3d 408, overruled on other grounds, Silberg v. Anderson (1990), 50 Cal. 3d 205.
As distinguished from extortion, abuse of process is the actual filing of a lawsuit or the taking of other legal action, to achieve a purpose unrelated to the substance or merits of the legal action. To prove an abuse of process, a plaintiff must show that the defendant entertained an ulterior motive in using the legal process, and committed a willful act in a wrongful manner. See Coleman v. Gulf Insurance Group (1986) 41 Cal.3d 782, 792. “The gist of the tort is the misuse of the power of the court: It is an act done under the authority of the court for the purpose of perpetrating an injustice, i.e., a perversion of the judicial process to the accomplishment of an improper purpose. Younger v. Solomon (1974), 38 Cal.App.3d 289, 297.
Extortion is defined by California’s Penal Code §518 as the obtaining of property from another, with his or her consent induced by a wrongful use of force or fear. Fear, for purposes of extortion, may be induced by a threat, either to accuse the individual threatened of any crime, or to expose, or impute to the threatened individual any deformity, disgrace, or crime. See Pen. Code, §519.
A threatened action does not have to be illegal for extortion to have occurred. For example, if a person threatens to report an actual crime to the police, the action that is threatened – the reporting of a crime – is not illegal. However, when the threat is coupled with a demand for money, the threat may become illegal and may constitute extortion. “It is the means employed to obtain the property of another which the law denounces, and though the purpose may be to collect a just indebtedness arising from and created by the criminal act for which the threat is to prosecute the wrongdoer, it is nevertheless within the statutory inhibition. The law does not contemplate the use of criminal process as a means of collecting a debt.” Flatley v. Mauro (2006), 39 Cal. 4th 299, 303. In other words, it is the use of fear as a weapon in order to obtain money or property from another which the law condemns, even if the money or property is rightfully owed.
Extortion can occur whether or not the victim is guilty of the crime or indiscretion with which he or she is being threatened. Additionally, the crime or indiscretion does not need to be specific – the accusation need only be such as to put the victim in fear of being accused of some crime. In fact, many extortionists use vague and general accusations in order to magnify the fears of the victim, and in order to protect themselves from prosecution in the event that the attempt fails to extract money.
Threatening criminal prosecution in an effort to gain some advantage in civil litigation can be abuse of process and extortion. For example, in Miguel Mendoza v. Reed Hamzeh (2013) 215 Cal. App. 4th 799, attorney Hamzeh was seeking to recover money owed to his client by Mendoza. He wrote a letter to Mendoza’s attorney stating that, if Mendoza did not pay the money owed, Hamzeh would proceed with filing a civil complaint, as well as reporting Mendoza to the Attorney General, the District Attorney, the Internal Revenue Service, and the Better Business Bureau. The attorney was sued for civil extortion. It is irrelevant whether Mr. Mendoza indeed owed the money, or even whether he should indeed have been reported to the Attorney General, District Attorney, IRS, etc… What the attorney did wrong was to use the fear of that reporting to demand money from Mendoza.
Often, people who are guilty of indiscretion or who do owe money, turn the tables on the extortionist – who may quickly be moved from aggrieved plaintiff to a defendant. The lessons of the David Letterman affair are clear. Demand money for anything that even looks like or smells like an offer to “keep quiet,” and you may very well find yourself sued and/or prosecuted.
If you have been the victim of civil extortion or abuse of process, or you are trying to assert legitimate rights without being, you should contact an experienced business litigation attorney who has dealt extensively with these issues. The Boesch Law Group can help you recognize and protect your rights in this area. To speak with a member of our Southern California legal team, please call (310) 578-7880.
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