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 is a Great Writer!
All right, I admit. I'm a fan. Everything that Terry McMillan writes is based upon real people and comes from her heart! Whether it's novels or Terry McMillan presents:
For an Update Interview with Terry McMillan click here for an AETV Interview.
Now ... about that $ 40 million dollar lawsuit .......................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.
In part the lawsuit said:
"The defendants conspired and formed a plan to threaten to humiliate and embarrass Terry McMillan," the lawsuit said, "and violate her privacy and place her in harm's way,and threatened to damage her professional and personal standing in an attempt to extort monies from her."
The negative publicity had NOTHING TO DO WITH TERRY McMILLAN. It was to humiliate her because she fell so in love with a grifter. Now Jonathan Plummer claims he believed he was straight and found out he was not. But in the threats the implication was that her love story would be ruined by showing how she was manipulated. It was a terrible threat by Plummer's lawyer. It took genuine human pain and attempted to monetize it.
McMillan's allegations include emotional distress, invasion of privacy and placing her in a "false light" to harm her professionally and personally. She also claimed that Plummer violated a restraining order by calling her to speak with her son. Remember that Terry was not a Hollywood type. She was a real mother, real person and her relationships were real as well. This meant that the pain suffered by her son was deep and genuine. He was not some trust fund kid. He was a brilliant, caring young man and Jonathan's reaching out to him under these circumstances was painful (which is acceptable) but potentially manipulative and damaging given the extortionate conduct described in the lawsuit.
The Legal Issue - Despicable, Brutal and Greedy Threats are Usually Protected in Legal Proceedings
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 as it remained against Plummer 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.
First Amendment vs Extortion
In Seltzer v. Barnes (2010) 182 Cal.App.4th 953, an attorney fraud allegation was found not sufficient to meet the standard of criminal conduct held in Flatley, stating that “[t]here, the court held that, where ‘the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law,” such activity will not support the special motion to strike.” (Seltzer, supra, 182 Cal.App.4th at 964.) That was the key question in Terry's case - was the threat of public disclosure extortion or within the realm of hardball litigation tactics. The Flatley [Flatley v. Mauro (2006) 39 Cal.4th 299] statement of “illegality” as an exception to constitutionally protected conduct has been interpreted in many ways. In general it means conduct which violates a principle of constitutional, statutory, or common law. The fact that Jonathan Plummer married Terry McMillan under false pretenses is not in itself criminal or a law violation. Her book which was a blockbuster based upon her joy in that relationship would be undermined if his tactics, choices and decisions were made known. That is not a crime either. However, is it extortion to trade silence on this issue for money? That is the question.
The difficultly in Terry's case was that Flatley v. Mauro (2006) 39 Cal.4th 299, 322-325 held that a defendant may not use the statute where ‘either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law.’ (Id. at p. 320 Neither Jonathan Plummer nor his attorneys conduct were blanketly illegal as a matter of law - it was rough, painful and exploitive of Terry's vulnerability - but was it "illegal"?
Court emphasized that Flatley is limited to the extreme facts of the case, in which “the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech ... was illegal as a matter of law” (emphasis added) (Id. at 320):
“We emphasize that our conclusion that [defendant's] communications constituted criminal extortion as a matter of law are based on the specific and extreme circumstances of this case. Extortion is the threat to *25 accuse the victim of a crime or ‘expose, or impute to him. any deformity, disgrace or crime’ (Pen.Code, § 519) accompanied by a demand for payment to prevent the accusation, exposure, or imputation from being made. Thus, our opinion should not be read to imply that rude, aggressive, or even belligerent prelitigation negotiations, whether verbal or written, that may include threats to file a lawsuit, report criminal behavior to authorities or publicize allegations of wrongdoing, necessarily constitute extortion. [Citation.]... In short, our discussion of what [is] extortion as a matter of law is limited to the specific facts of this case.” Id. at 332, n. 16.
A review of Court of Appeal Opinions involving Flatley issues similarly limit Flatley to criminal conduct. Mendoza v. ADP Screening & Selection Servs., Inc. (2010) 182 Cal.App.4th 1644, 1654, concluded that this Court's “use of the phrase ‘illegal”’ in Flatley “was intended to mean criminal, and not merely violative of a statute.” Mendoza declined “to give plaintiffs a tool for avoiding the application of the anti-SLAPP statute merely by showing any statutory violation.” Id.; see also Gerbosi, supra, 193 Cal.App.4th at 446 (“We understand Flatley to stand for this proposition: when a defendant's assertedly protected activity may or may not be criminal activity, the defendant may invoke the anti-SLAPP statute unless the activity is criminal as a matter of law”); Hutton v. Hafif (2007) 150 Cal.App.4th 527, 542 (“In order for an underlying action to be illegal as matter of law, its illegality must be conceded by the defendant or conclusively established by the evidence to be so”). In the end the attorney avoided liability but Jonathan Plummer was held responsible as the case was pled and against him the case went forward.
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