December 9, 2022

Flickinger v. Finwall

Plaintiff engaged a contractor to remodel his property and later confided to the contractor that the funds for the remodel came from illegal business kickbacks. After the contractor walked off the job, Plaintiff sent a demand letter threatening to report the contractor. The attorney for the contractor sent a letter in response suggesting that Plaintiff’s initiating litigation might result in an investigation into Plaintiff’s business relationships.

Plaintiff went ahead and successfully sued the contractor for breach of contract. Plaintiff then sued the contractor’s attorney and the contractor for civil extortion based on the attorney letter suggesting Plaintiff might be investigated. The attorney filed an anti-SLAPP motion, which the trial court denied on grounds that the attorney's letter was extortion and therefore not eligible for anti-SLAPP protection, citing Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley). Defendant appealed.

The Court of Appeal reversed, holding that prelitigation communication is extortion as a matter of law only where an attorney’s conduct falls entirely outside the scope of ordinary professional conduct. The Court of Appeal concluded the attorney letter suggesting that Plaintiff might be investigated was within the bounds of professional conduct, and the Flatley exception to anti-SLAPP protection therefore did not apply.