Dua v. Dordulian CA2/2

Filed 7/7/21 Dua v. Dordulian CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

SOHAN DUA, B303302

Cross-complainant and (Los Angeles County
Appellant, Super. Ct. No. 19STCV09569)

v.

SAM DORDULIAN et al.,

Cross-defendants and
Respondents.

APPEAL from a judgment and order of the Superior Court
of Los Angeles County, Patricia D. Nieto, Judge. Affirmed.
The Law Offices of J. Grant Kennedy and J. Grant
Kennedy for Cross-complainant and Appellant.
KP Law and Zareh A. Jaltorossian for Cross-defendants
and Respondents Sam Dordulian and Dordulian Law Group.
Barry Law Group and Jared A. Barry for Cross-defendants
and Respondents Armen G. Mitilian and Mitilian Law Group.
******
 Cross-complainant and appellant Sohan Dua (Dua) appeals
from the judgment entered in favor of cross-defendants and
respondents Sam Dordulian, the Dordulian Law Group, Armen
G. Mitilian and Mitilian Law Group, APLC (collectively,
respondents),1 after the trial court granted respondents’ special
motions to strike, under Code of Civil Procedure section 425.16,2
Dua’s cross-complaint for civil extortion, intentional infliction of
emotional distress, and abuse of process. Dua also appeals the
order awarding Mitilian $19,508.60 in attorney fees. We affirm
the judgment and the attorney fees award.

BACKGROUND
The parties
Mitilian and Dordulian are cocounsel who represent
Andrea W. (plaintiff) in a civil action against Dua. Plaintiff
worked as a receptionist at the Northridge Dialysis Center where
Dua, a physician, treated dialysis patients.
Plaintiff’s complaint against Dua
Plaintiff commenced a civil action against Dua on
March 20, 2019, asserting causes of action for sexual battery,
assault, and intentional infliction of emotional distress. The
summons and complaint were served on Dua by personal service.

1 Sam Dordulian and the Dordulian Law Group are referred
to collectively as Dordulian. Armen G. Mitilian and Mitilian Law
Group, APLC, are referred to collectively as Mitilian.
2 All further statutory references are to the Code of Civil
Procedure, unless stated otherwise. Section 425.16 is sometimes
referred to as the anti-SLAPP statute. SLAPP is an acronym for
strategic lawsuit against public participation.

2
 Plaintiff alleges in her complaint that in June 2016, she
and Dua attended a medical conference in Dallas, Texas, where
conference attendees stayed at the same hotel. Plaintiff intended
to take a bus to Corpus Christi one night to visit relatives;
however, she missed her bus. Dua told plaintiff he was arranging
a flight to Corpus Christi for her and asked her to come to his
hotel room. Dua assaulted plaintiff after she entered his hotel
room. Ignoring plaintiff’s protests, Dua held plaintiff down on
the bed, climbed on top her, and attempted to rape her. Plaintiff
was able to free herself when her cell phone rang, momentarily
distracting Dua.
Dua filed his answer to plaintiff’s complaint on April 26,
2019. In his answer, Dua characterized plaintiff’s claims as “a
moment of mistaken romance” and accused respondents of
distorting the facts in order to extort compensation from him.
Dua’s cross-complaint against respondents
Dua also filed a cross-complaint against respondents,
asserting causes of action for civil extortion, abuse of process, and
intentional infliction of emotional distress. The extortion cause of
action is based on two prelitigation communications by
respondents.
May 2018 demand letter
The first communication is a demand letter Dordulian sent
to Dua on behalf of plaintiff in May 2018. The letter sets forth
the history of plaintiff’s claims against Dua, including the June
2016 incident in Texas and Dua’s alleged continued harassment
of plaintiff thereafter. The letter accuses Dua of sexual predation
based on multiple incidents of alleged sexual assault. It states in
relevant part:
“You are a sexual predator, of which you are
well aware. There is ample evidence to establish that

3
 you are liable for attempted rape, sexual harassment,
assault and battery, false imprisonment, and a host
of other causes of action in violation of applicable
Federal Law and State Law. Your attack on
[plaintiff] was not an isolated incident. Your
predatory and callous behavior continued when you
assaulted another National Renal Care employee,
[Ms. G.], in February 2017. We are certain other
victims you preyed on will contact us as soon as the
claims of [plaintiff] and Ms. [G.] are made public with
the commencement of litigation.
“A simple review of recent jury verdicts reflects
awards of several hundreds of thousands to millions
of dollars for conduct similar to your sexual assault
and related conduct.
“[Plaintiff] is prepared to initiate litigation
against you. In the interest of avoiding litigation,
however, [plaintiff] is willing to settle all her claims
against you for a payment of $2,500,000, and proof of
enrollment for one year in a sexual
harassment/assault program, along with proof of
completion of the same, to help reduce the risk of you
harming others. If [plaintiff] is forced to initiate
litigation thereby drawing attention to you because a
settlement is not reached, her claim for damages will
be substantially greater.
“Our demand remains open until 5pm on
May 11, 2018. If we do not receive a response by
May 11, 2018, we will presume you are not interested
in resolving this matter, and we will take steps to
preserve and enforce [plaintiff’s] rights and
remedies.”
The second communication underyling Dua’s civil extortion
claim is a December 21, 2018 e-mail from Dordulian to J. Grant

4
Kennedy, Dua’s then newly retained attorney, who replaced
Dua’s previous counsel. Dordulian sent the December 21, 2018
e-mail in response to a December 20, 2018 e-mail from Kennedy.
Kennedy’s December 20, 2018 e-mail stated that he was
cancelling a previously scheduled mediation because plaintiff’s
settlement demand was “unrealistic.” He described plaintiff’s
case as a “shakedown” and a “fender bender at best.”
Dordulian’s December 21, 2018 e-mail in response states in
relevant part:
“. . . I take great offense at the notion of you
calling your client’s conduct a ‘fender bender at best.’
I truly hope that it is only as a result of you not being
told the actual facts from Dr. Dua. If you have been
told the real facts and still believe that conduct
amounts to a ‘fender bender,’ then I suspect we will
likely only resolve our disputes in trial. That
characterization is not only insulting, but deeply
wounding to my client. Contrary to the clear
impression that you have of Armen and I, I was a
deputy district attorney that spent 6 years in the sex
crimes division of the LA County District Attorney’s
office. I can assure you the conduct of your client the
night of June 2016 amounts to attempted rape in the
State of California and I would have easily charged
the same . . . .
“Although my client has been resisting the idea
of proceeding with criminal charges in Texas, I can
assure [you] that the approach you[’re] taking will
surely make it easier for me to convince her to do so.
Calling his conduct a fender bender and
characterizing our lawsuit as a shakedown is exactly
the type of insensitive and combative approach that
will inflame my client and help me convince her that
filing criminal charges is the right thing to do. His

5
 actions that night were repulsive and inexcusable
and not some little misunderstanding. Once again I
only hope your commentary is solely as a result of
you not learning all the facts. What we have outlined
in the demand letter is something we will be able to
prove and I can assure you my client’s credibility will
surely trump that of Dr. Dua. You clearly have never
met my client and certainly have yet to learn the true
character of your client. The only thing you are right
about the Me Too movement society and our jurors
will no longer tolerate the same ‘it’s just a little
misunderstanding’ or ‘fender bender’ excuses you
attempt to provide and I welcome the verdict we will
obtain against your client if that continues to be your
approach.”
Mitilian was copied on the December 20 and December 21,
2018 e-mails exchanged between Kennedy and Dordulian.
The May 2018 demand letter and Dordulian’s December 21,
2018 e-mail, together with personal service on Dua of plaintiff’s
summons and complaint, are the bases for Dua’s cross-claim for
intentional infliction of emotional distress. Dua alleges that in
December 2018, his attorney, Kennedy, advised respondents that
Kennedy would accept service of any summons and complaint
and that he would consider any attempt to serve Dua personally
an abuse of process. The cross-claim for abuse of process is based
solely on personal service of the summons and complaint on Dua.
Anti-SLAPP motions
Dordulian and Mitilian filed separate motions to strike
Dua’s cross-complaint under section 425.16, arguing that the
cross-claims arose from protected speech or petitioning activity
and that Dua could not establish a probability of prevailing on his
claims. Mitilian further argued that Dua failed to present any
evidence that Dordulian’s allegedly extortionate statements could

6
be imputed to Mitilian. Dua’s opposition to the motions was
supported by his own declaration and that of his attorney,
Kennedy.
The trial court granted respondents’ respective anti-SLAPP
motions. The trial court also granted in part Mitilian’s
subsequently filed motion for attorney fees and costs pursuant to
section 425.16, subdivision (c)(1) and awarded Mitilian the
reduced sum of $19,508.60.
This appeal followed.

DISCUSSION
I. Applicable law and standard of review
Section 425.16, subdivision (b)(1) provides in relevant part:
“A cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to
a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
Determining whether the statute bars a given cause of
action requires a two-step analysis. (Navellier v. Sletten (2002)
29 Cal.4th 82, 88 (Navellier).) First, the court must decide
whether the party moving to strike a cause of action has made a
threshold showing that the cause of action “aris[es] from any
act . . . in furtherance of the [moving party’s] right of petition or
free speech.” (§ 425.16, subd. (b)(1); accord, Navellier, at p. 88.)
If the court finds that a defendant has made the requisite
threshold showing, the burden then shifts to the plaintiff to
demonstrate a “probability that the plaintiff will prevail on the

7
claim.” (§ 425.16, subd. (b)(1); accord, Navellier, at p. 88.) In
order to demonstrate a probability of prevailing, a party opposing
a special motion to strike under section 425.16 “‘“must
demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is
credited.”’” (Jarrow Formulas, Inc. v. LaMarche (2003) 31
Cal.4th 728, 741.)
We review de novo a trial court’s order granting a special
motion to strike under section 425.16. (ComputerXpress, Inc. v.
Jackson (2001) 93 Cal.App.4th 993, 999.)
II. Protected activity
Section 425.16 defines an “act of that person in furtherance
of the person’s right of petition or free speech under the United
States Constitution or the California Constitution in connection
with a public issue” to include statements or writings made
before a judicial proceeding or made in connection with an issue
under consideration or review by a judicial body. (§ 425.16, subd.
(b)(1).) Statements, writings and pleadings in connection with
civil litigation are therefore protected by the anti-SLAPP statute.
(Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th
1106, 1115 (Briggs); Healy v. Tuscany Hills Landscape &
Recreation Corp. (2006) 137 Cal.App.4th 1, 5.)
A. Civil extortion cross-claim
Dua’s civil extortion cross-claim is premised on two
prelitigation communications—the May 2018 demand letter and
Dordulian’s December 2018 e-mail to Dua’s attorney. Both
communications are protected speech or petitioning activity
under section 425.16 and do not come within any exception to
that statutory protection.

8
 As a general rule, a demand letter or other communications
sent in anticipation of litigation constitute legitimate speech or
petitioning activity protected under the anti-SLAPP statute.
(Briggs, supra, 19 Cal.4th at p. 1115; Malin v. Singer (2013) 217
Cal.App.4th 1283, 1293 (Malin).) Our Supreme Court has
recognized a narrow exception to this general rule for a demand
letter so extreme as to constitute criminal extortion as a matter
of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 329-333
(Flatley).)
1. Criminal extortion
Criminal extortion is defined as “‘the obtaining of property
from another, with his consent . . . induced by a wrongful use of
force or fear . . . .’ (Pen. Code, § 518.) Fear, for purposes of
extortion ‘may be induced by a threat, either: [¶] . . . [¶] 2. To
accuse the individual threatened . . . of any crime; or, [¶] 3. To
expose, or impute to him . . . any deformity, disgrace or crime[.]’
(Pen. Code, § 519.) ‘Every person who, with intent to extort any
money or other property from another, sends or delivers to any
person any letter or other writing, whether subscribed or not,
expressing or implying, or adapted to imply, any threat such as is
specified in Section 519, is punishable in the same manner as if
such money or property were actually obtained by means of such
threat.’ (Pen. Code, § 523.)” (Flatley, supra, 39 Cal.4th at
p. 326.) A demand for money accompanied by a threat to report a
crime may constitute criminal extortion even if the threat is
vaguely worded. (Malin, supra, 217 Cal.App.4th at p. 1295.)
Attorneys are subject to these same principles in their
professional conduct. The Rules of Professional Conduct prohibit
attorneys from threatening to present criminal, administrative,
or disciplinary charges to obtain an advantage in a civil dispute.

9
(Cal. Rules of Prof. Conduct, rule 3.10(a); Flatley, supra, 39
Cal.4th at p. 327; Malin, supra, 217 Cal.App.4th at p. 1295.)
2. Flatley
In Flatley, at attorney named Mauro represented a client
who alleged she was raped by Flatley, a well-known “performer
and dance impresario.” (Flatley, supra, 39 Cal.4th at p. 305.)
After sending a demand letter on his client’s behalf, Mauro
telephoned Flatley’s attorney and warned that he would “go
public” with the rape allegations, which would be “‘publicized
every place [Flatley] goes for the rest of his life’” (Id. at p. 330.)
Mauro made similar threats to “‘“go public”’” in subsequent phone
calls. (Ibid.) In response to an inquiry by Flatley’s attorney
about how much money Mauro wanted, Mauro responded that “‘it
would take “seven figures.”’” (Ibid.) Mauro’s demand letter
warned Flatley that unless he settled, “‘an in-depth
investigation’” into his personal assets to determine punitive
damages would follow, and this information would “‘BECOME A
MATTER OF PUBLIC RECORD, AS IT MUST BE FILED WITH
THE COURT . . . . [¶] Any and all information, including
Immigration, Social Security Issuances and Use, and IRS and
various State Tax Levies and information will be exposed. We
are positive the media worldwide will enjoy what they find.’” (Id.
at p. 329, boldface omitted.)
The California Supreme Court concluded that Mauro’s
letter and subsequent phone calls constituted “extortion as a
matter of law” and were not constitutionally protected speech or
petitioning activities under the anti-SLAPP statute. (Flatley,
supra, 39 Cal.4th at pp. 328, 330.) The court explained that
Mauro’s “communications threatened to ‘accuse’ Flatley of, or
‘impute to him,’ ‘crime[s]’ and ‘disgrace’ (Pen. Code, § 519, subds.

10
2, 3) unless Flatley paid Mauro a minimum of $1 million . . . .
[Citations.] [¶] Mauro’s letter accuses Flatley of rape and also
imputes to him other, unspecified violations of various criminal
offenses involving immigration and tax law as well as violations
of the Social Security Act. With respect to these latter threats,
Mauro’s letter goes on to threaten that ‘[w]e are positive the
media worldwide will enjoy what they find.’ . . . [Citation.] [T]he
threat to disclose criminal activity entirely unrelated to any
alleged injury suffered by Mauro’s client ‘exceeded the limits of
respondent’s representation of his client’ and is itself evidence of
extortion.” (Id. at pp. 330-331.)
3. Mendoza
The court in Mendoza v. Hamzeh (2013) 215 Cal.App.4th
799 (Mendoza) applied the Flatley exception to a demand letter
written by an attorney, Reed Hamzeh, on behalf of a client who
was in an employment dispute with Miguel Mendoza. Hamzeh’s
letter stated that Mendoza’s fraud, conversion, and breach of
contract had caused his client to suffer losses in excess of
$75,000. The letter warned that unless Mendoza reimbursed
these losses, Hamzeh would file a lawsuit and report Mendoza to
state and local prosecutors, the IRS, the Better Business Bureau,
and other customers and vendors. (Mendoza, at p. 802.)
Mendoza sued Hamzeh for civil extortion, intentional
infliction of emotional distress, and unfair business practices, and
argued that Hamzeh’s threats to report him to prosecutors and
the IRS constituted criminal extortion. Hamzeh moved to strike
Mendoza’s complaint under the anti-SLAPP statute. (Mendoza,
supra, 215 Cal.App.4th at pp. 802-803.) In affirming the denial of
the anti-SLAPP motion, the appellate court in Mendoza
concluded that “Hamzeh’s threat to report criminal conduct to

11
enforcement agencies and to Mendoza’s customers and vendors,
coupled with a demand for money, constitutes ‘criminal extortion
as a matter of law,’ as articulated in Flatley” and was not
protected speech or petitioning activity under the anti-SLAPP
statute. (Mendoza, at p. 806.)
4. Malin
In Malin, supra, 217 Cal.App.4th 1283, the court held the
Flatley exception inapplicable to a demand letter similar to the
communications at issue here. In Malin, an attorney named
Martin Singer sent a demand letter and proposed complaint on
behalf of his client, Shereene Arazm, a business partner of
Michael Malin and Lonnie Moore. The demand letter accused
Malin and Moore of embezzlement, conversion, breach of
fiduciary duty, and misappropriation of more than a million
dollars. In the disputed portion of the letter, Singer accused
Malin of misusing company resources “‘to arrange sexual liaisons
with older men such as “Uncle Jerry,” Judge [name redacted],
a/k/a “Dad” (see enclosed photo), and many others. When the
Complaint is filed with the Los Angeles Superior Court, there
will be no blanks in the pleading. [¶] My client will file the
Complaint against you and your other joint conspirators unless
this matter is resolved to my client’s satisfaction within five (5)
business days from your receipt of this Complaint.’” (Id. at
p. 1289, italics omitted.)
Singer included with the demand letter a photograph of the
judge and a copy of the draft complaint. The draft complaint did
not identify any alleged sexual partners but contained blank
spaces that the letter stated would be filled in when the
complaint was filed.

12
 After receiving the demand letter, Malin sued Singer and
Arazm for civil extortion, violation of civil rights, and intentional
and negligent infliction of emotional distress. Singer and Arazm
moved to strike Malin’s complaint under the anti-SLAPP statute,
which the trial court denied. The Court of Appeal reversed the
order denying the motion to strike the civil extortion cause of
action, concluding that Singer’s demand letter was a protected
communication in anticipation of litigation and “d[id] not fall
under the narrow exception articulated in Flatley for a letter so
extreme in its demands that it constituted criminal extortion as a
matter of law.” (Malin, supra, 217 Cal.App.4th at p. 1299.)
The court in Malin explained: “In contrast with the
demand letters in Flatley and Mendoza, Singer’s demand letter
did not expressly threaten to disclose Malin’s alleged
wrongdoings to a prosecuting agency or the public at large.”
(Malin, supra, 217 Cal.App.4th at p. 1298.) “[T]he ‘secret’ that
would allegedly expose [Malin] and others to disgrace was
inextricably tied to Arazm’s pending complaint. The demand
letter accused Malin of embezzling money and simply informed
him that Arazm knew how he had spent those funds. There is no
doubt the demand letter could have appropriately noted that the
filing of the complaint would disclose Malin had spent stolen
monies on a car or a villa, if that had been the case. The fact that
the funds were allegedly used for a more provocative purpose
does not make the threatened disclosure of that purpose during
litigation extortion. We cannot conclude that the exposure of
Malin’s alleged activities would subject him to any more disgrace
than the claim that he was an embezzler.” (Id. at p. 1299.)

13
 5. Respondents’ communications do not constitute
criminal extortion as a matter of law and are
protected under section 425.16
Respondents met the threshold requirement of
demonstrating that Dua’s extortion cross-claim arises from
activity protected under the anti-SLAPP statute. The bases for
the extortion cross-claim—the May 2018 demand letter and
Dordulian’s December 2018 e-mail to Kennedy—are protected
prelitigation communications or petitioning activity under section
425.16. (Briggs, supra, 19 Cal.4th at p. 1115.)
Respondents’ demand letter, like the letter in Malin, supra,
217 Cal.App.4th 1283, does not constitute criminal extortion as a
matter of law. The May 2018 demand letter does not threaten to
report Dua to a prosecuting agency or to the public at large. Its
accusations that Dua is a sexual predator and liable for
attempted rape, sexual harassment, false imprisonment, assault,
and battery are inextricably tied to the claims asserted in
plaintiff’s then pending complaint. Unlike the letter in Flatley,
respondents’ demand letter does not threaten to “go public” with
the accusations unless money is paid. It simply states that
plaintiff’s allegations will become public upon the filing of the
complaint and that other victims of Dua’s sexual misconduct
might then come forward. As with any demand letter,
respondents’ May 2018 letter sets forth the monetary sum
plaintiff would be willing to accept to settle her claims in lieu of
litigation. The monetary demand is not coupled with any threat
to report Dua to any prosecuting agency.
Respondents’ demand letter falls outside the narrow
exception recognized in Flatley for a demand letter so extreme as
to constitute criminal extortion as a matter of law. Under the

14
general rule articulated in Briggs, the May 2018 demand letter is
protected speech or petitioning activity under section 425.16.
(Briggs, supra, 19 Cal.4th at p. 1115; Malin, supra, 217
Cal.App.4th at p. 1293.)
Dordulian’s December 2018 e-mail to Dua’s attorney
similarly does not constitute criminal extortion as a matter of law
and is a protected communication under section 425.16. In the
e-mail, Dordulian responds to Kennedy’s dismissive
characterization of plaintiff’s claims as a “fender bender” and a
“shakedown” by expressing the opinion, based on Dordulian’s
experience as a former deputy district attorney, that the 2016
Texas incident was tantamount to attempted rape. Dordulian
goes on to state that Kennedy’s dismissive attitude and approach
could persuade plaintiff to overcome her reluctance to file
criminal charges against Dua in Texas. The e-mail contains no
threat to report Dua’s conduct to a prosecuting agency unless a
monetary sum is paid. It contains no demand for money or any
other property whatsoever. The December 2018 e-mail does not
constitute criminal extortion as a matter of law. It accordingly
does not come within the Flatley exception to the general rule
that communications preparatory to or in anticipation of
litigation are protected under section 425.16. (Briggs, supra, 19
Cal.4th at p. 1115; Malin, supra, 217 Cal.App.4th at pp. 1298-
1299.)
Dua’s contention that respondents’ prelitigation
communications violated the Rules of Professional Conduct,
which prohibit an attorney from “threaten[ing] to present
criminal, administrative, or disciplinary charges to obtain an
advantage in a civil dispute” (Cal. Rules Prof. Conduct, rule
3.10(a), does not establish that those communications constituted

15
criminal extortion as a matter of law. Even assuming Dua could
establish that respondents’ conduct violated rule 3.10(a), that
violation would not constitute criminal conduct within the
narrow Flatley exception. The exception set forth in Flatley is
limited to criminal conduct, not violation of a civil statute or the
Rules of Professional Conduct. (See Bergstein v. Stroock &
Stroock & Lavan LLP (2015) 236 Cal.App.4th 793, 806 [court’s
use in Flatley “‘of the phrase “illegal” was intended to mean
criminal, and not merely violative of a statute’”]; Fremont
Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169
[“[c]onduct in violation of an attorney’s duties of confidentiality
and loyalty to a former client cannot be ‘illegal as a matter of
law’” for purposes of Flatley exception].)
We reject Dua’s argument that the May 2018 demand letter
and Dordulian’s December 2018 e-mail, read together, constitute
criminal extortion as a matter of law. Nothing in the December
2018 e-mail indicates that it is conditioned upon Dua’s
acceptance of the May 2018 settlement offer, which by its terms
expired on May 11, 2018. The only reference to the May 2018
demand letter in the December 2018 e-mail is the statement that
plaintiff will be able to prove the allegations outlined in the
demand letter.
Neither the May 2018 demand letter nor the December
2018 e-mail, individually or considered together, constitute
criminal extortion as a matter of law. (Malin, supra, 217
Cal.App.4th at p. 1299.) Both communications are therefore
protected under the anti-SLAPP statute. (Briggs, supra, 19
Cal.4th at p. 1115; Malin, at pp. 1298-1299.)

16
 B. Abuse of process cross-claim
Dua’s abuse of process cause of action, based solely on
personal service of the summons and complaint, arises out of
conduct protected by the anti-SLAPP statute. Service of process
is conduct undertaken “in furtherance of the exercise of the
constitutional right of petition” (§ 415.16, subd. (e)(4)) because
serving the lawsuit is a necessary step to litigation. (See Greene
v. Lindsey (1982) 456 U.S. 444, 450-451 [service of summons
constitutionally required to provide notice of lawsuit to
defendant].) It is therefore a protected activity under section
425.16. (Cf. Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770
[“Pleadings and process in a case are generally viewed as
privileged communications.”]; see Feldman v. 1100 Park Lane
Associates (2008) 160 Cal.App.4th 1467, 1489 [service of notice
terminating tenancy and prosecution of unlawful detainer action
protected by § 415.16].)
The California Supreme Court’s decision in Rusheen v.
Cohen (2006) 37 Cal.4th 1048 (Rusheen) supports the conclusion
that service of the summons and complaint in this action was a
protected activity under section 425.16. The court in Rusheen
addressed two issues in reviewing a judgment following an order
granting an anti-SLAPP motion: “(1) whether actions taken to
collect a judgment, such as obtaining a writ of execution and
levying on the judgment debtor’s property, are protected by the
litigation privilege as communications in the course of a judicial
proceeding; and (2) whether a claim for abuse of process based on
the filing of an allegedly false declaration of service is barred by
the litigation privilege on the ground the claim is necessarily
founded on a communicative act.” (Rusheen, at p. 1055.)

17
 The court in Rusheen explained that because the litigation
privilege set forth in Civil Code section 47, subdivision (b)3
protects only acts that are communicative, the threshold issue in
determining whether the litigation privilege applies is whether
the defendant’s alleged conduct is communicative or
noncommunicative. (Rusheen, supra, 37 Cal.4th at p. 1058.)
Pleadings and process, as well as filing false or perjurious
testimony or declarations, are considered privileged. (Ibid.) The
Supreme Court further explained that even if the challenged
conduct was a noncommunicative physical act, a court must
determine whether the gravamen of the cause of action was
communicative or noncommunicative conduct. (Id. at p. 1061.)
The court in Rusheen concluded that “if the gravamen of the
action is communicative, the litigation privilege extends to
noncommunicative acts that are necessarily related to the
communicative conduct.” (Id. at p. 1065.) “The distinction
between communicative and noncommunicative conduct hinges
on the gravamen of the action. [Citations.] That is, the key in
determining whether the privilege applies is whether the injury
allegedly resulted from an act that was communicative in its
essential nature.” (Id. at p. 1058.)
The court in Rusheen based its decision on the second prong
of the anti-SLAPP analysis—the probability the party opposing

3 Subject to certain exceptions not applicable here, Civil Code
section 47, subdivision (b) confers an absolute privilege, barring
all tort causes of action except a claim of malicious prosecution,
on statements and communications made “[i]n any . . . judicial
proceeding” or “in the initiation or course of any other proceeding
authorized by law.” (Civ. Code, § 47, subd. (b); Kenne v. Stennis
(2014) 230 Cal.App.4th 953, 965.)

18
the motion would prevail—and did not address the first prong—
whether the noncommunicative act of levying on a judgment is an
act in furtherance of the right of petition or free speech.
(Rusheen, supra, 37 Cal.4th at p. 1065.) Although the anti-
SLAPP statute and the litigation privilege are not substantively
the same, courts may “look[] to the litigation privilege as an aid
in construing the scope of section 425.16, subdivision (e)(1) and
(2) with respect to the first step of the two-step anti-SLAPP
inquiry—that is, by examining the scope of the litigation privilege
to determine whether a given communication falls within the
ambit of subdivision (e)(1) and (2).” (Flatley, supra, 39 Cal.4th at
p. 323.) Communicative acts identified in Rusheen as protected
by the litigation privilege may accordingly constitute protected
activity under the first prong of the anti-SLAPP statute.
Service of the summons and complaint on Dua was itself a
protected act. (Rusheen, supra, 37 Cal.4th at p. 1058; Navellier v.
Sletten, supra, 106 Cal.App.4th at p. 770.) Moreover, Dua’s cross-
complaint confirms that the gravamen of his abuse of process
cross-claim is a communicative act premised on the allegations of
the complaint. The cross-complaint alleges that personal service
of the summons and complaint caused Dua embarrassment,
emotional distress, and “problems with his wife and family”
because of “the nature of the Complaint” (i.e., the allegations
contained therein).
Dua’s argument that respondents ignored his attorney’s
agreement to accept service of process in order to further
embarrass him does not alter the result. As respondents point
out, Dua had changed lawyers several times before plaintiff filed
her complaint, and exercise of their statutorily authorized chosen

19
method of service avoided any potential problems with service on
Dua’s attorney.
Respondents met their burden of establishing that Dua’s
abuse of process cross-claim is premised on a communicative act
protected by the litigation privilege and by section 425.16.
C. Intentional infliction of emotional distress
Dua’s cross-claim for intentional infliction of emotional
distress is based on the May 2018 demand letter, Dordulian’s
December 2018 e-mail to Kennedy, and the alleged wrongful
service of process. As discussed in parts II.A. and II.B. above, the
two prelitigation communications and service of process are all
protected activities under section 425.16. Respondents
accordingly made a threshold showing that Dua’s cross-claim for
intentional infliction of emotional distress “aris[es] from any
act . . . in furtherance of the [moving party’s] right of petition or
free speech” under the first prong of the anti-SLAPP statute.
(§ 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.) We
therefore turn to the second prong of the analysis required under
section 425.16—whether Dua has sustained his burden of
demonstrating a probability of prevailing on his cross-claims.
(§ 425.16, subd. (b)(1); Navellier, at p. 88.)
III. Probability of prevailing
A. Civil extortion
The litigation privilege precludes any probability of Dua
prevailing on his civil extortion claim. The litigation privilege is
absolute and precludes liability for a publication or broadcast
made in or in the initiation of a judicial proceeding. (Civ. Code,
§ 47, subd. (b); Action Apartment Assn., Inc. v. City of Santa
Monica (2007) 41 Cal.4th 1232, 1241 (Action Apartment); Digerati
Holdings, LLC v. Young Money Entertainment, LLC (2011) 194

20
Cal.App.4th 873, 887 (Digerati).) “‘“The usual formulation is that
the privilege applies to any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that [has] some connection or logical relation to the action.”
[Citation.] The privilege “is not limited to statements made
during a trial or other proceedings, but may extend to steps taken
prior thereto, or afterwards.” [Citation.]’ [Citation.] The
litigation privilege is interpreted broadly in order to further its
principal purpose of affording litigants and witnesses the utmost
freedom of access to the courts without fear of harassment in
derivative tort actions. [Citation.] The privilege is absolute and
applies regardless of malice.” (Digerati, at pp. 888-889.)
The May 2018 demand letter and December 2018 e-mail
fall squarely within the protection accorded by the litigation
privilege. Both communications were made prior to, and in
connection with, an anticipated judicial proceeding. Both
communications were made by plaintiff’s attorneys in an effort to
resolve plaintiff’s claims against Dua. Given the absolute nature
of the litigation privilege, Dua has not met his burden of
establishing a probability of prevailing on his civil extortion
claim. (Digerati, supra, 194 Cal.App.4th at p. 889.)
B. Abuse of process
Dua’s abuse of process claim, premised solely on personal
service of the summons and complaint, fails as a matter of law.
“To establish a cause of action for abuse of process, a plaintiff
must plead two essential elements: that the defendant (1)
entertained an ulterior motive in using the process and (2)
committed a wilful act in a wrongful manner.” (Coleman v. Gulf
Ins. Group (1986) 41 Cal.3d 782, 792.) As to the second element,

21
“‘there is no abuse of process’” if the process “‘is used for its
proper purpose even though the person uses it for wrongful and
malicious motives.’” (Cantu v. Resolution Trust Corp. (1992) 4
Cal.App.4th 857, 886.) “[T]here is no tort where process is used
properly albeit with a bad motive.” (Abraham v. Lancaster
Community Hospital (1990) 217 Cal.App.3d 796, 826; accord,
Cantu, at p. 886 [“merely filing or maintaining a lawsuit is not a
proper basis for an abuse of process claim”].)
An improper purpose that will support an abuse of process
claim “usually takes the form of coercion to obtain a collateral
advantage, not properly involved in the proceeding itself, such as
the surrender of property or the payment of money, by the use of
the process as a threat or a club.” (Templeton Feed & Grain v.
Ralston Purina Co. (1968) 69 Cal.2d 461, 466, italics omitted
[creditor of a turkey farm abused process by having sheriff seize
35,000 turkeys belonging to a second creditor to force the second
creditor to pay the farm’s debts].)
“[I]ntended vexation, harassment and irritation” of a
litigant and his family are not the types of coercion or collateral
advantage that will support an abuse of process claim. (Golden v.
Dungan (1971) 20 Cal.App.3d 295, 302 (Golden).) In Golden, the
defendant sent a process server to the plaintiff’s home at
midnight. Even though the lights inside the house were off and
the house was dark, and despite the fact that this was the first
service attempt, the process server pounded on the door in a “loud
and boisterous manner” instead of using the doorbell, awakening
plaintiff, his family, and the neighborhood. (Id. at p. 299.) The
court in Golden held that these facts did not state an abuse of
process claim. (Id. at p. 302.) The court explained that “‘process
must be used for something more than a proper use with a bad

22
motive; that if a party uses it for the immediate use for which it
was intended, he is ordinarily not liable, notwithstanding a
vicious or vindictive motive; that if he uses the process of the
court for its proper purpose, though there is malice in his heart,
there is no abuse of process.’” (Ibid., quoting Pimental v. Houk
(1951) 101 Cal.App.2d 884, 887.) Personal service of the
summons and complaint on Dua in this case did not constitute an
abuse of process. (Ibid.)
C. Intentional infliction of emotional distress
Dua’s cross-claim for intentional infliction of emotional
distress is based solely on the May 2018 demand letter,
Dordulian’s December 2018 e-mail, and personal service of the
summons and complaint. The two prelitigation communications
are protected by the litigation privilege (Action Apartment, supra,
41 Cal.4th at p. 1241; Digerati, supra, 194 Cal.App.4th at p. 889),
and personal service of the summons and complaint do not
support an abuse of process claim in this case. (Golden, supra, 20
Cal.App.3d at p. 301.) For reasons discussed in parts III.A. and
III.B. above, Dua has not established a probability of prevailing
on his cross-claim for intentional infliction of emotional distress.
D. Dua fails to present evidence of an agency
relationship between Dordulian and Mitilian
To the extent that Dua’s claims against Mitilian for civil
extortion and intentional infliction of emotional distress are
premised on Dordulian’s December 2018 e-mail to Kennedy, those
claims fail because there is no basis for attributing Dordulian’s
statements in the e-mail to Mitilian. Dua failed to present any
evidence that Dordulian’s and Mitilian’s relationship was
anything other than as cocounsel. As the party asserting an
agency relationship between Dordulian and Mitilian, Dua had

23
the burden of producing evidence to prove the existence of such a
relationship. (See Inglewood Teachers Assn. v. Public
Employment Relations Bd. (1991) 227 Cal.App.3d 767, 780
[burden of proving agency is on party asserting the existence of
the agency].) He failed to do so.
IV. Attorney fees award
Dua’s sole basis for challenging the award of attorney fees
and costs to Mitilian under section 425.16, subdivision (c) is that
the trial court erred in granting the anti-SLAPP motion. Because
we affirm the judgment entered upon the trial court’s order
granting the anti-SLAPP motion, we also affirm the award of
attorney fees and costs.

DISPOSITION
The judgment is affirmed, as is the order awarding Mitilian
attorney fees and costs. Respondents shall recover their costs on
appeal.

________________________, J.
CHAVEZ

We concur:

________________________, P. J.
LUI

________________________, J.
HOFFSTADT

24