Can I sue for extortion?

[Crazyhorse]

I have good news and bad news.

The good news is that you're right and I'm wrong. Although very rare... corporations have been charged with extortion in their business practices.

Bad news is that none of the cases I found with Westlaw really are analagous to what's happening with you... as all these cases deal client disputes. I really don't feel comfortable going any further than that... but I would strongly recommend you retain legal counsel or at least go to your local law library and start to poke around in some of the books.

A good starting point might be:

American Law Reports ALR3d
CRIMINAL LIABILITY OF CORPORATION FOR EXTORTION, FALSE PRETENSES, OR SIMILAR OFFENSES

Good luck!

 

[I AM ALWAYS LIABLE]

My response:

Evidence obtained through electronic eavesdropping or recording of a confidential communication in violation of Ca Penal § 632 is inadmissible in any proceeding (except as proof in a criminal prosecution or tort action for a violation of Ca Penal § 632). [Ca Penal § 632(d); see Frio v. Sup.Ct. (Ierace) (1988) 203 Cal.App.3d 1480, 1490, 250 Cal.Rptr. 819, 824]

Ca Penal § 632 prohibits the surreptitious recording "by means of any electronic amplification or recording device" without the consent of all parties. [Ca Penal § 632(a); see Frio v. Sup.Ct. (Ierace), supra, 203 Cal.App.3d at 1489, 250 Cal.Rptr. at 823]

A secret recording may constitute an intrusion on privacy even if the matters recorded are not confidential: "(A) person may reasonably expect privacy against the electronic recording of a communication, even though he or she had no reasonable expectation as to confidentiality of the communication's contents." [Sanders v. American Broadcasting Companies, Inc. (1999) 20 Cal.4th 907, 915, 85 Cal.Rptr.2d 909, 914]

Under California law, "every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication" shall be subject to fine or imprisonment. [Ca Penal § 632 (emphasis added); Coulter v. Bank of America Nat'l Trust & Sav. Ass'n (1994) 28 Cal.App.4th 923, 929-930, 33 Cal.Rptr.2d 766, 771--employees' conversations with supervisors and coworkers, which employee surreptitiously recorded in anticipation of litigation against employer, were "confidential" under § 632 and improperly recorded without consent]

IAAL

 

[BB_Wolfe]

OP - 0
IIAL - 1


And OP, the money is not, nor will it ever be, yours. You need to focus on the future at this point, even if you win the amount, the 45K will be lost to atty fees.

 

[Greg Loomis]

Thanks again Crazyhorse.


Hey IAAL,

Thanks for your reply. But if evidence OBTAINED IN VIOLATION of Ca Penal § 632 is inadmissible in any proceeding, then what about evidence OBTAINED LEGALLY in accordance with Ca Penal §633.5?

“Nothing in Section 631, 632, 632.5, 632.6, or 632.7 renders any evidence so obtained inadmissible in a prosecution for extortion.”

You have failed to show why my evidence is illegal. The evidence itself, shows why it is extortion. Further, Coulter v. B of A was a sexual discrimination case and did not involve extortion. The goofball was running around recording co-workers. Am I mistaken?


And hello again BB_Wolfe,

<<the money is not, nor will it ever be, yours>>

I assume you’ve already put your best foot forward. In your first post you said the 45K became mine when my termination occurred. (I terminated my employment myself. I terminated it verbally, immediately, on-the-spot, legally, and in accordance with the terms of our written contract.)

Do you think the qualifying event has not occurred? Or,

Do you have new material to support your new opinion? Or,

Is this a just bold assertion offered out of frustration?

<<You need to focus on the future at this point>>

Thanks. That’s good general advice for anyone in any situation.

<<at this point, even if you win the amount, the 45K will be lost to atty fees>>

Yes. I am already aware of this. The attorney is the most formidable enemy of all.

Two things come to mind:

1) Our contract says that I am allowed to collect legal costs and atty fees.

2) What atty?

 

[stephenk]

Loomis,

get it straight. you are either working for the company or you are not working for the company.

you cant say you are entitled to the severance pay and then complain that you still have to work for the company but dont like being transferred.

You are entitled to the severance pay once you terminate working for the company. you are not being extorted to work for the company because you can always work for another company. nothing is preventing you from getting another job.

if the company wont pay you the severance amount upon you not working for them any more, then you can file a breach of contract lawsuit against them.

 

[Greg Loomis]

Stephenk

Long post – I have lots of free time over here.

<<get it straight. you are either working for the company or you are not working for the company.>>

Got it. I am not working for the company. And we all want it that way. The trouble is, I want to play by the rules, and they don’t.

Remember, our contract was for a term of five years. But they changed their mind, and wanted me to quit early (over the course of a month or so). Not only did they want me to quit, they wanted me to “just forget” about that severance clause.

On the recording, they essentially said two things:

1) That if I went the legal route, and pursued the severance issue, that they would pretend that I was not entitled to it.

2) That if I did not enter into a new agreement with them (retrocessional - no severance is due), that they would retaliate by demanding that I report for work ninety miles away.

Are things clearer now?

They never expected me to accept the transfer. The only purpose of the transfer was to portray me as insubordinate and in breach, so that they could get me out without having to pay my severance. And when you listen to the recording this is all really, really, clear.

I went home after the meeting (I worked at home) and mailed them a certified letter announcing my resignation (my termination) under the terms of our contract. It said, “I am taking my option to terminate my employment immediately, as described in our contract.”

Trouble is, they sent me a certified letter back, refusing to accept my termination on the grounds that the conditions had not been met. They demanded that I resume my work. And just to add to the confusion: in the recording you can hear them say that they are “letting me go!”

They are playing games. Get it?

<<you can’t say you are entitled to the severance pay and then complain that you still have to work for the company but don’t like being transferred.>>

Of course not. I hope I covered this above. If not, let me know.

<<You are entitled to the severance pay once you terminate working for the company.>>

Yes. We agree. That happened. I terminated (you can hear it on the recording). I am not working for the company. I am entitled to the severance pay (they even said so themselves - you can hear it on the recording).

<<you are not being extorted to work for the company>>

Correct. I was being extorted to allow them to keep my severance.

<<you can always work for another company. nothing is preventing you from getting another job.>>

No.

1) I am still bound by an employment contract, and by an NDA to the company until 2005. Who’s going to hire an engineer who is legally bound to hand over his inventions to another company?

2) I am well known in my industry. There were press releases announcing when I started working for this company. And now most of my peers know that some “bad stuff” went down between us. I’ve gained the reputation of a troublemaker, and it looks like the only way to save face is with a court decision.

<< if the company wont pay you the severance amount upon you not working for them any more, then you can file a breach of contract lawsuit against them.>>

That’s good general advice – and a good starting point. But when you plug it in to my situation there are a few problems. Namely, my evidence is weak without the recording, and the recording (please-please-please correct me if I’m wrong) is inadmissible unless it proves extortion.

So what’s the problem? Why can’t I sue for extortion and breach?

They extorted me. They made the threat a few days earlier. And when they asked me to come into a meeting, I suspected that they would do it again, so I exercised my rights and recorded them.

The biggest problem I can see so far is this:

There is an accepted definition of Extortion and Force, which is a subset of the definitions offered in the statutes. This type of extortion is so popular that most judges and attorneys have come to accept it as the ONLY type of extortion.

I’m an ordinary guy. The state promised me that if someone threatens me with extortion, that I can record them and use that recording as evidence. The state says that if I want to know what my rights are, and what extortion is, I can look it up. And I did.

The problem is, a lot of folks are asking me to believe that an alternate universe exists with alternate definition for Extortion and Force, and with an alternate set of rules.

The problem is, so far no one has offered an ounce of evidence to support this claim.

 

[divgradcurl]

"Thanks for your reply. But if evidence OBTAINED IN VIOLATION of Ca Penal § 632 is inadmissible in any proceeding, then what about evidence OBTAINED LEGALLY in accordance with Ca Penal §633.5?"

Evidence obtained legally under §633.5 is only admissible in a PROSECUTION for extortion. Only the DA can prosecute someone for extortion.

If you want to bring a criminal charge against these guys, take your evidence down to the DA and see if they will charge them. You can't charge them yourself.

IAAL and others, is there a tort cause of action for extortion?

One last thing -- OP, have you considered taking your employment contracts and everything to the CA Department of Labor Standards Enforcement? They should be able to give you an idea of what remedys you might have against your employer.

 

[Greg Loomis]

Hey everyone,

Consider this. Here’s a synopsis – I took myself out of the equation:

1) Employee and Employer enter into a five-year contract. Contract includes clauses that allow both parties to terminate early if certain conditions are met.

2) After three years both parties want out, but neither can, because none of the conditions have been met.

3) One day, a condition is met that allows Employee to take his option to terminate, and Employee acts on that option. Employer doesn’t like this choice because it involves paying Employee $45K. Behind closed doors, Employer demands that Employee enter into a new agreement. Employee refuses, and Employer extorts Employee by rejecting his resignation letter - effectively forcing Employee to stay in the game.

4) Employer launches malicious campaign to force Employee to breach the contract by demanding that he transfer to a new office ninety miles away.


My trouble is, if I take the “Behind closed doors” part away, (in other words, if I forget about the extortion charge and the audio recording,) here’s what I’m left with:

1) Employee and Employer enter into a five-year contract. Contract includes clauses that allow both parties to terminate early if certain conditions are met.

2) After three years both parties want out, but neither can, because none of the conditions have been met.

3) One day, Employee claims a condition has been met. Employee quits and demands $45K. Employer denies that Employee is entitled to collect $45K. Employee and Employer disagree.


Does everyone see the difference?

I think I am getting better at explaining this. Is anyone getting better at understanding?

divgradcurl - I'll reply in a minute

 

[Greg Loomis]

Divgradcurl,

Let me answer out of sequence.

<<OP, have you considered taking your employment contracts and everything to the CA Department of Labor Standards Enforcement?>>

Yes. I did that and they helped me recover my unpaid vacation time. They said anything else was material for civil court. Note: I only mentioned the recording once to the Deputy Labor Commissioner who was handling my case – and she jumped all over me saying that my recoding was illegal and that I could go to jail. She scared the heck out of me and acted as though she was doing me a favor by not reporting me! But looking back, I realize that this was a big mistake on my part. I should have stuck to my guns – I am quite convinced that she is mistaken. I am convinced I made the recording legally.

<<If you want to bring a criminal charge against these guys, take your evidence down to the DA and see if they will charge them. You can't charge them yourself.>>

That’s exactly what I originally thought. But we are wrong!

Here’s what I did:

I filled out a complaint at the local Sheriff’s department. I left them with an audio CD of the recording, and a copy of my employment contract.

I asked them if I was correct for coming to the Sheriff’s department (rather than going to the DA) and they said it didn’t matter, because they would forward the report to the DA anyhow.

Then two months went by and I never heard back from anyone. So I mailed a certified letter to the DA, including another CD of the recording, and another copy of the contract.

The remainder of this post is the DA’s reply in its entirety. (When you read it remember that I included a copy of the recording on a CD, and a copy of our contract with my certified letter.)

--------------------------------------------------------------

Dear Mr. XXXX:

I am in receipt of your letter of August 12, 2003. Please let me correct several misconceptions contained in your letter. While you correctly site the Mission Statement of this office, you are a little off on the way that the process works in terms of the investigation of crimes. We are not a primary investigating agency. You correctly approached the Santa Barbara Sheriff's Department, Carpinteria Branch, and provided them with the information. Whoever told you that they would turn the recording over to us to be investigated either was in error or you misunderstood. We receive matters which are investigated by the various law enforcement agencies within our jurisdiction and then review them for the sufficiency of evidence for further prosecution. In this particular instance, you should contact the Santa Barbara Sheriff's Department, Carpinteria Office, to determine what progress they are making on your investigation. No such recording has been turned over to this office and this office would not be conducting an investigation in any case prior to the completion of the investigation by the Santa Barbara Sheriff's Department.

If you have any further questions, I suggest you contact the Sheriff's Department.

Very truly yours,

Thomas W. Sneddon, Jr.
District Attorney

 

[divgradcurl]

"I only mentioned the recording once to the Deputy Labor Commissioner who was handling my case – and she jumped all over me saying that my recoding was illegal and that I could go to jail."

The reason she did this is because in a CIVIL matter, Ca Penal §633.5 doesn't protect you or make the evidence admissible.

"That’s exactly what I originally thought. But we are wrong!"

I should have been more clear -- it is up to the DA to bring the charges, but, as you found out, the cops do the investigating. If the cops don't think there is enough to take to the DA, they won't.

DLSE pointed you in the right direction -- it's a civil problem. Sue them for breach of contract or something. You do have a lawyer, right? What is he or she saying about all of this?

Forget about the extortion -- if the police and DA's office want to follow up on that, they will.

 

[Greg Loomis]

Hi everyone,

Excuse me for bringing this thread back from the dead.

Notice that it has been over two years since all this went down.

Does anyone know the statute of limitations for penal code 632.(a) ?

 

[stephenk]

Did you ever hire an attorney and file your breach of contract lawsuit?

 

[Greg Loomis]

Did you ever hire an attorney and file your breach of contract lawsuit?

Nope. I’ve spent the last two years sweating and worrying that the Santa Barbara police were going to come and raid my house, and arrest me for recording the meeting I discussed in my earlier posts. But I guess they don’t want to do that, even though I sort of wish they would.

Like I mentioned earlier, I gave Sneddon (now of Michael Jackson fame) a copy of the recording, and a full confession of how and why I made it. But he said to talk to the Santa Barbara Sheriff's Department.

Well … I did take it to the Santa Barbara Sheriff's Department, and the investigating officer concluded, “No crime has been broken.”

So I’ve certainly given them enough time to come and get me if they want me. And now I’m wondering if I shouldn’t be protected by the statute of limitations.

Do you see where I’m going with this?

Remember that my employment agreement was a written contract; and so I've still got some time to file a complaint.

So what do you know about the statute of limitations for 632.(a)?

 

[Greg Loomis]

So what do you know about the statute of limitations for 632.(a)?

Hey stephenk,

I have made a remarkable discovery. The statute of limitations appears to be three years:

Penal Code 801. Except as provided in Sections 799 and 800, prosecution for an offense punishable by imprisonment in the state prison shall be commenced within three years after commission of the offense.

My controversial audio recording was recorded in May of 2002. A section 632 violation is committed the moment a confidential communication is secretly recorded regardless of whether it is subsequently disclosed. (Friddle v. Epstein (1993) 16 Cal.App.4th 1649, 1660-1661.)

If I pursue this I might not have to claim extortion at all. Just breach of contract.

Do you think I can get my recording submitted as evidence?

The defendant will not be able to show that it was recorded illegally. I can show that I gave District Attorney Thomas W. Sneddon, Jr., and the Santa Barbara Sheriff’s Department my full cooperation on this issue, and that they had every opportunity to prosecute me if they wanted to.

Is my thinking all screwed up?

Any comments?

 

[EvilWizard]

Greg,

This is an interesting read for you. Not the exception for extortion that I have bolded:

CAN THE TAPED PHONE CALLS BE USED AGAINST SCOTT PETERSON?

We like to think that our phone calls and conversations can’t be taped unless there is a formal wiretap order or we give our permission. But is this true?

California Penal Code § 632 makes it a crime to record a conversation without the consent of ALL PARTIES.

(a) Every person who, intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, eavesdrops upon or records the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500), or imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment. If the person has previously been convicted of a violation of this section or Section 631, 632.5, 632.6, 632.7, or 636, the person shall be punished by a fine not exceeding ten thousand dollars ($10,000), by imprisonment in the county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.

So is Amber Frey a criminal?

Not so fast, let’s discuss the statute a bit more.

First of all, § 632 only protects private conversations. If you’re speaking in a public place or to a group of people, forget your privacy - the tape recorders can roll.

©) The term "confidential communication" includes any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.

(California Penal Code §632 ©))

But didn’t Scott Peterson expect privacy when he spoke on the telephone to Amber Frey?

The answer is "Yes" but Penal Code § 633 .5 creates an express exception to these rules. It states: "Nothing in Section ... 632 ... prohibits one party to a confidential communication from recording the communication for the purpose of obtaining evidence reasonably believed to relate to the commission by another party to the communication of the crime of extortion, kidnapping, bribery, any felony involving violence against the person, or a violation of Section 653m

[harassing telephone calls]. Nothing in Section ... 632 ... renders any evidence so obtained inadmissible in a prosecution for extortion, kidnaping, bribery, any felony involving violence against the person, a violation of Section 653m, or any crime in connection therewith." (Pen.Code, § 633.5.)


So is Scott Peterson completely out of options? Well, he’s got problems with this issue that’s for sure. He can try to assert that the recording did not "reasonably relate" to a crime. There could be argument that the section is meant to apply to a crime in progress or a planned crime, not a prior crime. Also, Amber Frey would have to be asked, "WHY, WERE YOU RECORDING?" She might answer because she was frightened. Such an answer might not fall under the exception.

However, even then, Scott Peterson has a problem. The statute states that the information can still be used in a criminal trial. You see, a statutory violation is not the same as a FOURTH AMENDMENT, constitutional violation. The federal court (Ninth Circuit) found that under California law, testimony as to the content of even an illegally recorded conversation is admissible, to the extent that the witness has an untainted recall of the actual conversation. (Feldman v. Allstate Ins. Co., C.A.9 (Cal.)2003, 322 F.3d 660) This is an important point. What is the reason for the recording? Amber Frey could testify about what was said. No one disputes that point. The recording is just more convincing.

So ..... Scott Peterson has to show that there was a FOURTH AMENDMENT violation. (Or a violation of the federal wiretap statute). This is his best bet and here’s how he could do it.

He has to find POLICE INVOLVEMENT with Amber Frey to the extent that they encouraged, aided or even told her to record. If Amber Frey were acting as a police agent, surrogate or even someone encouraged to record for the police then maybe there is a violation of the Fourth Amendment. You can be certain that Peterson’s very experienced attorney is working on this issue right now.

For those who are interested in a more detailed explanation here is a more detailed analysis.

The California Supreme Court addressed the federal wiretap People v. Otto (1992) 2 Cal.4th 1088. The court stated that "The exceptions to Title III's blanket proscription against electronic wiretapping and surveillance are contained in 18 United States Code section 2511(2). Subdivision (d) of that section provides that it shall not be unlawful for a person to intercept a communication where 'such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception....' In other words, the Act prohibits third party nonconsensual intercepts; one party may record a conversation without the knowledge or consent of the other, or may authorize another to do so." (Otto, at page 1097.) The statute allows recording a party to the conversation makes a recording "for the purpose of committing any criminal or tortuous act in violation of t/he Constitution or laws of the United States or of any State." (18 U.S.C. S 2511(2)(d).) This is why I raise the point - Was Scott Peterson breaking the law at that point?

"The effect of § 2511(2)(d), then, is to prohibit any interception, use or disclosure of oral or wire communications by a person not acting under color of law where the purpose is to commit any criminal, tortious or injurious act. [Citation.]" (United States v. Phillips (8th Cir.1976) 540 F.2d 319, 325.)

Recognizing a party may have multiple purposes in recording a confidential conversation, one federal district court concluded that 18 United States Code section 2511(2)(d) prohibits nonconsensual recording "when it is shown either (1) that the primary motivation, or (2) that a determinative factor in the actor's motivation for intercepting the conversation was to commit a criminal, tortious, or other injurious act." (United States v. Vest (D.Mass.1986) 639 F.Supp. 899, 904.)