Filed 11/30/22 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT JASON FLICKINGER, B322736 Plaintiff and Respondent, Santa Clara County Super. Ct. No. 19CV355773 v. GORDON J. FINWALL, Defendant and Appellant. APPEAL from an order of the Superior Court of Santa Clara County. Christopher G. Rudy, Judge. Reversed and remanded with instructions. Murphy, Pearson, Bradley & Feeney, Jonathan M. Blute and Jackson L. Stogner for Defendant and Appellant. Gates Eisenhart Dawson, Marc A. Eisenhart, James L. Dawson, Steven D. McLellan and Claire A. Melehani for Plaintiff and Respondent. ___________________________ This is an appeal from an order denying defendant Gordon J. Finwall’s motion to strike plaintiff Jason Flickinger’s causes of action against him pursuant to the anti-SLAPP statute, section 425.16 of the Code of Civil Procedure.1 There is no dispute that defendant’s underlying conduct was in furtherance of petitioning activity within the meaning of section 425.16, subdivision (b)(1). But the trial court concluded defendant’s prelitigation letter responsive to a demand from plaintiff’s counsel amounted to extortion as a matter of law so as to deprive it of section 425.16 protection under Flatley v. Mauro (2006) 39 Cal.4th 299, 320 (Flatley). We interpret Flatley as holding an attorney’s prelitigation communication is extortion as a matter of law only where the attorney’s conduct falls entirely outside the bounds of ordinary professional conduct. We find that defendant’s letter falls within the boundaries of professional conduct and therefore the Flatley exception to anti-SLAPP protection does not apply. We therefore conclude that defendant made a prima facie showing under the first prong of the anti-SLAPP analysis. Even though the trial court declined to reach it, we exercise our discretion to consider the second prong of the anti-SLAPP analysis and conclude that plaintiff failed to meet his burden to show a probability of prevailing on his causes of action. The sole cause of action that plaintiff defends on appeal is for civil extortion. We agree with defendant that the litigation privilege defeats this cause of action. Accordingly, we reverse the order of the trial court and remand with instructions to grant defendant’s motion and award 1 SLAPP is the acronym for “strategic lawsuit against public participation.” All further undesignated statutory references are to the Code of Civil Procedure. 2 defendant fees and costs pursuant to section 425.16, subdivision (c)(1). BACKGROUND Plaintiff is a homeowner. In 2014 he engaged a contractor, Robert Pendergrast, to remodel or otherwise improve various parts of his property. In early 2015, after Pendergrast had already done extensive work on the home, he agreed to remodel plaintiff’s kitchen for an additional $60,000 in cash. Several months later, while the kitchen work was still ongoing, plaintiff had Pendergrast over one evening for a social visit. During the visit, plaintiff, while “very drunk,” confided to Pendergrast that plaintiff had gotten the cash to fund the remodeling project illegally. Plaintiff, who was an employee of Apple, told Pendergrast he had taken kickbacks from Apple vendors while on business …
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