Extortion (“blackmail”) is obtaining money or property by force or fear.1 Criminal extortion (Penal Code 518) is different from civil extortion. The state can convict defendants just for making a threat. But to win a lawsuit, the plaintiff must have paid the defendant. Receiving threats is not enough.
Civil extortion has three “elements” plaintiffs must prove:
- The defendant knew the threat was wrongful,
- The threat included a demand for money, property or services (this threat could be express or implied), and
- The plaintiff complied with the demand.
Examples of civil extortion:
- A customer threatens a business with negative Yelp reviews. Unless the owner provides him with free services;
- A woman threatens to accuse her ex-husband of domestic violence. Unless he increases his child support payments;
- A celebrity’s ex-employee threatens to reveal confidential information. Unless the celebrity “does the right thing”;
- A hacker threatens to delete a hospital’s computer files. Unless the hospital pays “ransomware;” or
- Someone threatens to file a baseless lawsuit. Unless the other party pays to settle his “case.”
In the article below, our California personal injury lawyers discuss:
- 1. What is the definition of “civil extortion” in California?
- 2. What level of “fear” is necessary for extortion?
- 3. What if I did what the blackmailer alleged?
- 4. What if the defendant had the legal right to carry out the threatened actions?
- 5. Can’t someone ask for a settlement in order to avoid a lawsuit?
- 6. Can I sue if I didn’t pay any money to the blackmailer?
- 7. How does a person prove civil extortion?
- 8. Do I have to make a police report first to sue for civil extortion?
- 9. What are the damages for civil extortion in California?
- 10. Are attorney’s fees recoverable in a civil extortion case?
1. What is the definition of “civil extortion” in California?
The criminal definition of extortion is the same as civil extortion. As set forth in Penal Code 518 PC, “extortion” means:
“[T]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.”
2. What level of “fear” is necessary for extortion?
California Penal Code 519 sets for the level of fear necessary to make out a claim for extortion. That section provides:
“Fear, such as will constitute extortion, may be induced by a threat of any of the following:
- To do an unlawful injury to the person or property of the individual threatened or of a third person.
- To accuse the individual threatened, or a relative of his or her, or a member of his or her family, of a crime.
- To expose, or to impute to him, her, or them a deformity, disgrace, or crime.
- To expose a secret affecting him, her, or them.
- To report his, her, or their immigration status or suspected immigration status.”
3. What if I did what the blackmailer alleged?
The issue in civil extortion is not the plaintiff’s actions. It is the defendant’s use of force or fear.2
Example: Lisa works at a restaurant. Servers must serve food that dropped on the floor. One day the manager fires Lisa. She threatens to squeal about the dropped food unless the manager pays. Lisa is liable for extortion because of the threat. It does not matter that her accusation is true.
4. What if the defendant had the legal right to carry out the threatened actions?
People have the right to report wrongdoing to the police, government agencies, their company’s human resources department, and so forth.
But, just because you have the right to do something, it doesn’t mean you have the right to demand money NOT to do it.
For instance, people have the right to post negative reviews on websites such as Amazon and Yelp (as long as such reviews do not constitute business disparagement or defamation). That right is protected by the First Amendment.
Likewise, people have the right to report a suspected crime, an immigration violation, or a violation of their company’s sexual harassment policy.
But when someone makes a threat to do one of these things — AND demands money not to do it – it is unlawful.3
5. Can’t someone ask for a settlement in order to avoid a lawsuit?
Yes, if the intent is to resolve a good-faith dispute without litigation.
But the threat of legal action without the intention of taking it may constitute extortion.
Note that the person making the settlement request does not need to be right that the claim is winnable. But it must be made in good faith.
While there are no specific rules as to what can and cannot be contained in a pre-litigation “demand letter,” potential “red flags” include:
- Demands for specific amounts of money unrelated to actual economic damages,
- Threats to go to the media,
- Language suggesting vindictiveness or a desire to ruin the defendant’s reputation, or
- Threats unrelated to the plaintiff’s injuries.4
Example: Jeff is fired after repeatedly showing up late for his shift. He believes this is wrongful termination because he was not given written warnings as required by company policy.
Jeff sends an email to his former employer threatening to disclose sexual harassment by his boss unless the company settles his wrongful termination claim. Because his threat has nothing to do with his termination, it constitutes attempted extortion.
6. Can I sue if I didn’t pay any money to the blackmailer?
Plaintiffs cannot sue for civil extortion if they did not actually pay any money or property as a result of the extortion. It does not matter how much stress or emotional worry the blackmailer caused.
However, there may another basis for a suit — such as intentional infliction of emotional distress or a civil rights violation.5
And the person can still be prosecuted for the crime of attempted extortion.
7. How does a person prove civil extortion?
It depends on the case. Typical evidence of extortion may include:
- Recordings of the alleged extortionist threat. Such as emails, texts, voicemails, or video recordings.
- Bank records showing the exchange of money.
- Eyewitness testimony.
Plaintiffs have to prove civil extortion by a preponderance of the evidence. This is a much lower standard than in criminal cases. That is beyond a reasonable doubt. Therefore, a person could be acquitted of extortion in criminal court and still found liable in civil court.
8. Do I have to make a police report first to sue for civil extortion?
No. Civil extortion lawsuits are independent of criminal cases. Victims never have to file a police report. And they can still sue for their money or property.
9. What are the damages for civil extortion in California?
Damages for civil extortion can include:
- A return of the money paid to the blackmailer, and
- Punitive damages.7
Remember victims must have paid the blackmailer. Otherwise, victims cannot sue for civil extortion. It makes no difference if the threat caused pain, suffering and emotional distress.6
10. Are attorney’s fees recoverable in a civil extortion case?
No. Each party must cover its own attorney’s fees and costs.
But many California personal injury lawyers are “contingency.” They get paid only if the case settles. Or if the plaintiff wins at trial.
Legal references:
- California Penal Code Section 518.
- People v. Sanders (1922) 188 Cal. 744; People v. Goldstein (1948) 84 Cal.App.2d 581; People v. Hesslink (1985) 167 Cal.App.3d 781.
- Flatley v. Mauro (2006) 39 Cal. 4th 299 (“The law does not contemplate the use of criminal process as a means of collecting a debt.”).
- See e.g., Stenehjem v. Sareen (2014) 226 Cal. App. 4th 1405.
- For instance, the Ralph Civil Rights Act, California Civil Code Section 51.7, which provides a civil remedy for threats or acts of violence based on participation in labor disputes or because of race, gender or other protected characteristics.
- Fuhrman v. California Satellite Systems (1986)179 Cal. App. 3d 408, overruled on other grounds, Silberg v. Anderson (1990), 50 Cal. 3d 205.
- California Civil Code 3294. See also Esparza v. Specht (1976) 55 Cal. App. 3d 1.