Can I sue for extortion?

[Greg Loomis]

Thanks EvilWizard. Yes, I read that a long time ago. AFAIK, if a wiretapping/ eavesdropping case involves a phone conversation you don’t even have to prove the content was confidential.

But in my case I recorded a verbal conversation. I recorded it because I felt like I was being extorted, and I recorded it because I thought that I was protected under section 633.5.

But even if I was wrong (and I’m not suggesting that I was), then I should still be protected by the statute of limitations (penal code 801).

So the most important issue (AFAIK) is if I can submit my recording as evidence.

Damn … I need this recording bad. It is so painfully obvious to hear what is going on, and I don’t have much else. I really wish I had handled this differently at the time.

One spin that I haven’t seen anyone try (and I don’t think I will have any luck with either) is that the framers of Penal Code 632 go out of their way to explain why they wrote the law:

“The Legislature by this chapter intends to protect the right of privacy of the people of this state.”

Certainly the framers didn’t write this law to protect the right of privacy for employers to whisper into their employees ears, “Even though we entered into a written contract to employ you for five years, the fact is, we are not going to pay you any more. If you give us a hard time we will transfer you, but if you cooperate we will not transfer you.”

Imagine my frustration.

 

[CdwJava]

As a layperson in the world of civil law and finance, let me see if I got the long and short of this ... they are denying your severance by claiming that you violated the contract by refusing the position 90 days away ... correct? And your contract does indicate that your being terminated with cause severs the contract (or something similar) ... correct?

Your contention is that their telling you to take a job 90 miles away or be fired for breach of contract was extortion ... correct?

Having read everything you have written, I doubt that a criminal case for extortion can be made. Have you consulted an attorney for the civil end of this? Have you looked in to the statute of limitations for any civil action? if this happened in 2002 or 2003, the SOL may have tolled a couple years ago and this may be an exercise in futility.

- Carl

 

[EvilWizard]

Carl I thought I read it as the person was terminated first then offered the different position after they realized they would owe him 45k...

Of course I am drinking a bottle of Don Q rum right now though and my thought process is skewed

 

[CdwJava]

Carl I thought I read it as the person was terminated first then offered the different position after they realized they would owe him 45k...

Of course I am drinking a bottle of Don Q rum right now though and my thought process is skewed

You may be right. Mulling through all those posts may have numbed my brain as well.

I can only say with relative certainty that a criminal charge of extortion is highly unlikely if not impossible.

- Carl

 

[Greg Loomis]

Carl,

My complaint involves a written contract, so the statute of limitations is four years per California Code of Civil Procedure 337. My alleged breach occurred in May of 2002, so that gives me until May of 2006.

 

[Greg Loomis]

Let me try this again real fast. Here is a short reconstruction of what happened.

I had a written employment contract that guaranteed me five years of employment at a set rate. My employer had some clauses to terminate the agreement early for ‘cause,’ and I also had some clauses to terminate the agreement early for ‘cause.’

One of my ‘causes’ was that if the employer failed to make payroll (failed to pay all the employees their paychecks) that I would be allowed (but not required) to quit early. And if this happened, and if I chose to quit, then we agreed that I would receive a ‘severance payment’ of $45k.

Further, my employer was required to tell me if it couldn’t make payroll. That way I would know immediately when it happened, and I wouldn’t have to learn about it second hand.

Well … it happened.

My employer (Guy #1 and Guy #2) called me into a meeting and Guy #1 announced, “We’re out of money.” He said, ‘I was hoping we could come to some kind of an agreement.’

I asked, ‘We already have an agreement. So you are meeting your obligation under our contract because you are telling me that you cannot make payroll. Right?’

Guy #1 did not confirm or deny. Instead he repeated, ‘I’m telling you that we’re out of money.’

So I said, ‘Fine. I’m going to talk with an attorney about this.’

Then Guy #2 jumped in with a knee jerk reaction and said, ‘Fine. If that’s what you are going to do then we want you to begin working at the ‘Main Office’ beginning at 9:00 AM next Monday morning.

I replied, ‘No. I am taking my option to terminate out agreement early, and I will want my severance payment.’

Then Guy #1 stood up and yelled, “GET OUT OF MY OFFICE!”

In the recording his voice is artificial. You can tell that he is yelling so that employees outside of the office will overhear him.

So I stood up and walked out.

Note that I had just moved into a new apartment and that both Guys knew I was living 90 miles away.

 

[Greg Loomis]

Did you like my story?

Do you see why Guy #2 demanded to transfer me to the ‘Main Office’?

He did it out of retaliation. It was a threat. He was telling me that if I didn’t enter into a new agreement with them whereby I forfeited by severance, that they were ready, willing, and able, to launch a campaign against me to get me out of the company.

Their first maneuver in this campaign was to transfer me. (Btw, they were transferring me to THEIR office.)

This is why it is extortion:

They wanted to obtain my property (my $45k), with my consent (a new employment contract), by inducing force and fear (threatening to transfer me and threatening to launch a campaign against me). And that, according to CA Penal Code section 518, is extortion.

518. Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.

 

[Greg Loomis]

I can only say with relative certainty that a criminal charge of extortion is highly unlikely if not impossible.

Why?

The three elements are:

1) Obtaining of property from another.

2) … with his consent.

3) Induced by a wrongful use of force or fear.

They wanted me to enter into a new contract with them (so they could keep my severance) and then quit ASAP. If I didn’t comply, then they would make my life hell.

Why is this not extortion?

Why?

 

[Greg Loomis]

... they are denying your severance by claiming that you violated the contract by refusing the position 90 days away ... correct?

No. They are denying that they ever told me “we’re out of money” to avoid giving me the right to terminate and collect my severance.

 

[Greg Loomis]

Your contention is that their telling you to take a job 90 miles away or be fired for breach of contract was extortion ... correct?

Not exactly. I never refused to be transferred. Never. It was moot. They wanted me to begin working at the Main Office on the next Monday, but I terminated (or at least tried to terminate) my employment on that Friday.

 

[stephenk]

It was not extortion. Your tape will not be admitted into evidence in any civil action you file because your subjective reasons for taping the conversation are not enough and your belief as to why either one of your bosses said something is not enough either.

Will you just file your breach of contract complaint and be done with it already.

 

[CdwJava]

Threatening to relocate your office assignment is not likely to be seen as extortion. If that were the case, then anyone faced with termination and a crappy set of choices would be able to charge an employer with extortion.

I can see it now ...

BOSS: "Start showing up at work on time or we will cut your hours back."

EMPLOYEE: "I'm calling the police! This is extortion!"

It just won't fly.

Even if these guys were WRONG to do what they did to you, this is properly addressed in a civil suit and NOT in a criminal court.

What you appear to have is a breach of contract lawsuit - IF you can make that case.

What does your lawyer say about the case? It SEEMS as if you have not yet consulted one and you are trying to get some kind of affirmation for your position that a crime has been committed. The universal opinion on this board among law enforcement and attorney types seems to be that you have no criminal case. Whether you have a civil action will depend on the details of the contract.

Since Extortion pursuant to PC 518 (et seq) requires that you acquiesced to the demand. It MIGHT be an attempted extortion (doubtful), but the act has not been completed ... and even if it had been, and you acquiesced, I still believe this would be civil.

Additionally, when you taped the conversation you DID do so unlawfully. You did not know what would be said in the room and only pulled the extortion claim out of your hat AFTER the conversation. Hence your reason for recording it in the first place was NOT lawful as you had no prior knowledge of any such extortion attempt. Thus, the tape will not likely be permitted in to evidence even in a civil trial.

From CPOLS (published by the AG's office):

"Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right."

Fear, such as will constitute extortion, may be induced by a threat:

- to do an unlawful injury to the person or property of the individual threatened or of a third person; or,

- to accuse the individual threatened, or any relative of his, or member of his family, of any crime; or,

- to expose, or to impute to him or them any deformity, disgrace or crime; or,

- to expose any secret affecting him or them. (Pen. Code, §519.)

I see four threats that contitute "fear" under the (criminal) law ... none of which apply in your situation. The threat was to move you to a new location ... this is not a threat of injury, a threat to allege you committed a crime, a threat to expose some disgrace or deformity, or to expose a secret.

Sorry, but there is no criminal event here.

Consult an attorney to evaluate the strength of your case for a breach of contract suit. The local sheriff's office is not going to do your legwork for you and they are almost certainly not going to get in the middle of this.

- Carl

 

[Greg Loomis]

I see four threats that contitute "fear" under the (criminal) law ... none of which apply in your situation.
...
Sorry, but there is no criminal event here.

Look again. You are not reading the whole law. I am protected because the wrongful use of force constitutes extortion.

518. Extortion is the obtaining of property from another, with his consent, or the obtaining of an official act of a public officer, induced by a wrongful use of force or fear, or under color of official right.

“In the field of law, the word force has two main meanings: unlawful violence and lawful compulsion.”
- http://en.wikipedia.org/wiki/Force_(law)

"Force. Vb. To compel by physical means or by legal requirement.”
- Black’s Law Dictionary.

I had a five-year contract. I couldn’t quit unless certain conditions were met. Transferring to a new office was not one of them. If my employer demanded that I start working at a new office then I was certainly legally compelled and required to do so.

So sorry. I disagree. There is a criminal event here. It was wrong for them to exercise their option to transfer me for the sole purpose of causing hardship. And it would be obvious to anyone who heard this conversation that that was the sole purpose. Guy #2 effectively says, ‘Okay … if you demand your severance, then we will deny that this conversation ever took place and we will transfer you.’ He says that the transfer will NOT take place if I cooperate (by entering into a new wind-down employment contract without a severance clause).

 

[Greg Loomis]

… your belief as to why either one of your bosses said something is not enough either.

Guy #2 explained why he said what he said right after he said it. He explained that he would transfer me for the sole reason that I would not cooperate. Why ask me what I think he said and meant? Why not just take his word for it?

 

[Greg Loomis]

Threatening to relocate your office assignment is not likely to be seen as extortion. If that were the case, then anyone faced with termination and a crappy set of choices would be able to charge an employer with extortion.

I can see it now ...

BOSS: "Start showing up at work on time or we will cut your hours back."

EMPLOYEE: "I'm calling the police! This is extortion!"

No. In your example the employer was not malicious. His motive was to improve his business, not to weasel out of a severance clause. The employer's acts were not ‘wrongful,’ and so the circumstances did not meet 518’s definition of extortion.