Daniel Horowitz: Championing Justice for Author Terry McMillan
Introduction
Daniel Horowitz, a seasoned trial lawyer based in Lafayette, California, has left an indelible mark on the legal landscape. His expertise extends beyond the courtroom, encompassing high-profile cases, media commentary, and community involvement. One such notable case involved representing the acclaimed author Terry McMillan.
Terry McMillan’s Legal Battle
Background:
Terry McMillan, known for her best-selling novels like “Waiting to Exhale” and “How Stella Got Her Groove Back,” faced a challenging legal situation. Her ex-husband allegedly attempted to extort money from her during their divorce proceedings.
Terry McMillan vs. Jonathan Plummer Case
Terry McMillan, found herself embroiled in a high-profile legal dispute during her divorce from Jonathan Plummer. Their relationship had inspired her novel “How Stella Got Her Groove Back,” which explored a May-December romance.
Key Details - Divorce and Allegations:
In 2005, Terry McMillan and Jonathan Plummer divorced. The divorce proceedings took a contentious turn when Plummer revealed that he was gay. McMillan alleged that their marriage was “based on deceit” and accused Plummer of marrying her for financial gain and U.S. citizenship. Plummer disputed those allegations.
Reputation Damage and Lawsuit:
McMillan filed a lawsuit against her ex-husband, seeking $40 million in damages. She claimed that Plummer had intentionally tarnished her reputation during the divorce process. The lawsuit accused Plummer and his lawyer, Dolores Sargent, of conspiring to harm McMillan’s personal and professional standing.
The lawsuit alleged that certain statements relating to settlement in the divorce action were extortion. The lawsuit claimed that the demand made were that the case should settle and if it didn’t there would be negative publicity. Dancer Michael Flately had filed a lawsuit claiming that a demand letter from a lawyer was extortion and not protected conduct. This lawsuit created a very narrow window to file a lawsuit on those grounds. The lawsuit was strongly contested with the lawyer and Plummer claiming they were just stating a fact and not making any threats express or implied.
In suing the attorney for making these allegations Terry McMillan argued that the attorney used the threat of a painful exposure of her personal life details as a way to force her to pay money that was not otherwise due in the divorce.
However under California's anti-SLAPP lawsuit even bad faith legal filings have broad protection as it is an exercise of protected speech. To see if the speech is protected under the anti SLAPP statute (CCP 425.16) the court determines whether a defendant has made a prima facie showing that the lawsuit arises from an act in furtherance of the defendant’s right of petition or free speech. (Laker v. Bd. of Trustees, 32 Cal.App.5th 745, 762 (2019).) The determination is based upon the pleadings themselves and requires that the defendant identify all allegations of protected activity and all claims for relief supported by those allegations. (Baral v. Schnitt, 1 Cal.5th 376, 396 (2016).)
“A claim arises from a protected activity when that activity underlies or forms the basis for the claim.” (Park v. Board of Trustees of California State University, 2 Cal.5th 1057, 1062 (2017).) The Courts must “consider the elements of the challenged claims and what actions by defendant supply those elements and . . . form the basis for liability.” (Laker, 32 Cal.App.5th at 771.)
If a defendant meets its burden on the first step, the burden shifts and the court then examines, under the second prong, whether the plaintiff has shown a probability of success on the merits. (Baral, 1 Cal.5th at 396.) This step is a “summary-judgment” like process under which the court does not weigh evidence or resolve conflicts but accepts the plaintiff’s evidence as true and determines whether the plaintiff stated a “legally sufficient claim” and a prima facie factual showing. (Baral at 384-385.) Demurrer type arguments, statute of limitations arguments apply to the 2nd Prong as a defendant may attack a plaintiff’s showing on prong two by demonstrating that the plaintiff’s claim fails as a matter of law. (Baral at 385.) If the plaintiff cannot meet its burden, allegations of protected activity supporting the targeted claim are stricken from the complaint. (Baral at 396.)
There are ethical issues if the attorney makes claims that are completely unsupported by the facts but he/she pretends that they are while in reality an extortion is taking place.
“[A]n attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.” [Zamos v. Stroud (2004) 32 Cal.4th 958, 970.]
A lawyer making extortions threats is a co-conspirator to the crime and also violates Rule of Professional Conduct 3.3 Candor toward the Tribunal (a) A lawyer shall not: (1) knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” See also: Rule 4.1 Truthfulness in Statements to Others
Ultimately in the Terry McMillan lawsuit the court found that the attorney's conduct was protected but the court did not find that the same protection applied to the (soon to be) ex-husband. The lawsuit continued against Jonathan Plummer.
Invasion of Privacy and Restraining Order Violation:
McMillan also alleged invasion of privacy. She asserted that Plummer violated a restraining order when he contacted her to speak with their son.
Impact and Emotional Toll:
McMillan’s pain and betrayal were palpable. She likened the experience to a personal death.
During an emotional confrontation on Oprah, she confronted Plummer, saying, “You didn’t say anything about being gay. You said everything but that.” Plummer later asserted that he had only realized he was gay in the final two years of their marriage.
Outcome:
While the details of the case remain private, we can disclose that lawsuit against the attorney was dismissed as privileged under the California statute protecting the right of attorneys to make strong settlement statements without being sued for extortion. However, the case against Jonathan Plummer was allowed to go forward. The case settled quickly after that.
Daniel Horowitz operates his legal practice in Lafayette, California, located in Contra Costa County. His law firm is known for offering innovative and assertive legal representation across a broad spectrum of cases. Whether dealing with personal injury, criminal defense, or complex civil litigation, Daniel Horowitz and his team are dedicated to providing personalized and effective legal solutions tailored to each client’s unique needs