What is the Crime of Extortion?
Extortion is a complicated crime. When a lawyer writes a letter threatening to sue unless his client is paid money is that extortion?
Generally "no" it is protected by the litigation privilege. The litigation privilege, codified in California Civil Code Section 47(b), protects lawyers and their clients for writing demand letters and other communications (and conduct) done to get money for allegedly improper behavior by someone else. What does that mean? It means legal demands are highly protected even if the demand is claimed by the other side to be "fraudulent, perjurious, unethical, or even illegal.” Kashian v. Harriman, 98 Cal.App.4th 892, 920 (2002).
But doesn't that mean that even vicious, unfounded claims are encouraged? Yes, that is exactly what happens and the California Supreme Court has even said that this get out of jail free card is necessary. It "is the ‘price that is paid for witnesses who are free from intimidation by the possibility of civil liability for what they say….'” Silberg v. Anderson, 50 Cal.3d 205, 212 (1990) “The principal purpose of section [47(b)] is to afford litigants and witnesses the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.” “To effectuate its vital purposes, the litigation privilege is held to be absolute in nature.” Silberg at 215.
There are very narrow exceptions. The case of Flatley v. Mauro primarily addressed the legal boundaries of extortion within the context of pre-litigation communications.
In Flatley, the court found that the demand letter sent by attorney Mauro to Michael Flatley constituted criminal extortion as a matter of law . (Flatley v. Mauro, 39 Cal.4th 299 (2006)). This was due to the extreme nature of the threats made within the letter, which included threats to publicly accuse Flatley of rape and to report and publicize unspecified legal violations unless a substantial monetary settlement was paid. But the key was that the attorney and the client knew that no rape had ever taken place. It was a completely invented scheme.
When we took over the Oksana Grigorieva case against actor Mel Gibson, Gibson's team had approached the Los Angeles District Attorney's office via a friendly investigating officer and sought to have extortion charges brought against Oksana. She of course was the victim of a criminal assault and Mel Gibson ultimately was convicted. However, at that time no case had held that the litigation privilege was a shield against criminal charges. The law now says this. As of 2019 there is a specific court ruling holding that the litigation privilege applies in a criminal case. See: People v. Toledano, 36 Cal.App.5th 715, 728 (June 24, 2019) (“Thus, the litigation privilege may apply to criminal prosecutions of extortion.”); Toledano at 730
What about Donald Trump and the threats of exposure made by so-called "Porn Star" Stormy Daniels. Was that extortion? In California the basic law of extortion in California is defined in Penal Code § 518, which states that extortion involves the obtaining of property or other benefit rom another, by threatening a wrongful use of force or fear, or under the color of official right . What does that mean? Well for one thing "fear" is not just fear of being hurt.
Penal Code § 519 specifies the types of threats that can induce fear for the purposes of extortion, including threats to do unlawful injury, to accuse someone of a crime, or to expose a secret affecting an individual (Tran v. Nguyen, 97 Cal.App.5th 523 (2023)) TO EXPOSE A SECRET AFFECTING AN INDIVIDUAL!!!!!
The "secret" can be a "true secret". So when Stormy Daniels threatened to go public with her claims against Donald Trump, it was at least in California a classic extortion.
Daniel Horowitz is a noted television legal commentator and trial attorney. He is certified as one of less than 1000 Criminal Defense Specialists in California and his criminal defense practice has included cases from Ukraine to New York and California.