Fireman's Fund Ins. Co. v. Black

• Decision Date: 06 November 2014
• Docket Number: A136603
• Court: California Court of Appeals Court of Appeals
• Parties: FIREMAN'S FUND INSURANCE COMPANY, Plaintiff and Respondent, v. DOMINIQUE BLACK, Defendant and Appellant.

FIREMAN'S FUND INSURANCE COMPANY, Plaintiff and Respondent, v. DOMINIQUE BLACK, Defendant and Appellant.

A136603

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION ONE

November 6, 2014

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Mateo County Super. Ct. No. CIV511997)

Dominique Black submitted a claim to his insurer, Fireman's Fund Insurance Company. The claim was initially denied and, over the next couple of years, Black communicated with company representatives through letters, emails, and telephone conversations. In these communications, Black complained, often in vitriolic terms, that Fireman's Fund handled his claim improperly, engaged in illegal activities, and had ties to the Nazi regime in Germany.

Fireman's Fund sued Black alleging that his communications amounted to civil extortion, interference with contractual relations, interference with prospective economic advantage, and unfair business practices. Black responded by filing a special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP¹ motion). The trial court denied the motion after finding that Black's communications amounted to extortion as a matter of law and were not constitutionally protected.

We affirm the denial of the anti-SLAPP motion. But unlike the trial court, we conclude that Black's communications did not amount to extortion as a matter of law, and at least some of them were constitutionally protected. We nonetheless affirm the denial of the anti-SLAPP motion because Fireman's Fund's claims have at least minimal legal merit under the facts established thus far in the proceedings. We otherwise take no position on the strength of these claims.

FACTUAL AND PROCEDURALBACKGROUND

This case arose as a result of a claim Black submitted to Fireman's Fund for losses incurred on a "vintage" motor home he purchased in 1999 for $26,000. The losses were allegedly extensive. Black alleged that he delivered the motor home to a company, Northern California Classic GMC Service (NorCal), to be restored and modified. He alleged that NorCal failed to complete the work and abandoned the vehicle after being paid more than $250,000. Black eventually regained possession of the motor home and filed a suit against NorCal and its owners and associates for fraud, breach of contract, and common counts. After settling with NorCal's owners for $116,000, Black obtained a default judgment against the remaining defendants for more than $323,000.

In the insurance claim submitted to Fireman's Fund, Black asked for over $215,000 for the vehicle's replacement costs, including amounts paid for work not performed and parts not installed, as well as for court costs in his suit against NorCal. An appraiser with Fireman's Fund inspected the motor home and found no evidence of vandalism or theft of parts and concluded the vehicle's poor condition was the result of a "renovation gone bad." Fireman's Fund contended that the motor home was worth only about $6,000 when Black regained possession of it and that Black's policy did not coverlosses from uncompleted work, uninstalled parts, or court costs. Accordingly, in May 2010, Fireman's Fund initially denied Black's claim.²

This denial, however, far from resolved the matter. Over the next two years, Black continued to demand full payment of his claim, and Fireman's Fund repeatedly reconsidered it. During this time, the parties engaged in a contentious exchange of writings, mostly emails, and the content of these communications forms the basis of Fireman's Fund's suit against Black. Most of the emails were between Black and Don Lesser, an attorney retained by Fireman's Fund to serve as the point of contact for Black, with copies sent to others.

In the communications, Black asserted extensive grievances against Fireman's Fund. Among other things, he accused the company of improperly checking his business credit history and other records, requiring him to fill out a vehicle-theft affidavit, and exchanging his policy for another one with a lower policy limit.³ He also claimed Fireman's Fund was engaged in illegal money laundering by cancelling customer policies and substituting them with less desirable, more expensive policies.

Black was also troubled by the business and financial affairs of Fireman's Fund's parent company, Allianz SE (Allianz),⁴ which he believed had been aligned with the Nazi regime in Germany. He investigated purported misdeeds by Allianz during the Holocaust, and he implied to Lesser that Allianz never paid off on insurance policies that the company had issued to Jewish policyholders who were killed in concentrationcamps.⁵ Black claimed that, like Allianz, Fireman's Fund engaged in wide-ranging financial and other improprieties.

Even before his claim was denied, Black sent a letter to the company's director of automobile claims, copying other personnel, threatening to file a complaint with the California Department of Insurance (CDI), to use "social media to facilitate a viral consumer brand awareness campaign about Allianz's history of 'evil and corruption' in a global boycott of Allianz products and stock until [Fireman's Fund] corrects its conduct," and to pursue civil litigation "after this campaign." (Italics added.) In the later onslaught of emails, Black frequently referred to the Allianz-Nazi connection. In a declaration Lesser submitted in connection with the anti-SLAPP motion, Lesser stated that in telephone conversations Black repeated his threats to launch a "social media campaign" against Fireman's Fund and to associate it with Nazis. According to Lesser, Black avowed this would injure Fireman's Fund reputation, reduce the company's stock prices, and create problems for the company's senior executives. Lesser also declared that Black told him that he (Black) would not launch his campaign if Fireman's Fund paid the $215,000 he was demanding.

Black's methods and persistence succeeded in getting Fireman's Fund repeatedly to reconsider his claim. In the latter part of 2010, Fireman's Fund assigned the claim to a new adjuster, but this adjuster concluded that Black's claim could not be paid under the terms of the policy. In April 2011, Fireman's Fund assigned the claim to yet another claims adjuster. That same month, Black wrote to Lesser, "This matter is epic, five years, seven volumes documenting greed, negligence, fraudulent concealment and finally, malicious, oppressive acts of banal evil by" three named Fireman's Fund employees. Hewarned that those employees could be liable under the state's unfair competition law. A couple of months later, Black sent an email to the new claims adjuster and vowed to "escalate this issue to additional controlling authorities once it has been clearly rejected by you as submitted by me." (Underlining in original.)

In August 2011, Black sent an email to Lesser riddled with Nazi-related accusations against Allianz, Fireman's Fund, and their employees, including that Allianz and Fireman's Fund had a policy of "CLAIMS EXTERMINATION." A few days after this email, Black sent Lesser a banner he had designed to accompany his proposed social media campaign which had the words: "ALLIANZ-FFIC EXTERMINATES CLAIMS" superimposed over other images, including a swastika.

In late September 2011, Black sent another email to Lesser, 18 Fireman's Fund employees, and the CEO of Allianz identifying Fireman's Fund's general counsel and calling for her to be "replace[d]." He asserted that the general counsel and another attorney in her office were " 'despicable' " and " 'no better than the Nazi collaborators who control them.' " He also stated that they " 'favored drug dealers over their insured,' " " 'ratified corporate criminal conduct in order to conceal [Fireman's Fund's] breaches of contract and fraud,' " and were "willing to throw their insured into a modern gulag in order to cover up their violations and improve their quality assurance metrics." Black demanded the " 'discipline' " or the firing of other Fireman's Fund employees.

The following day, Black wrote yet another email, this time to the company's chief executive officer (CEO) and others, calling for the removal of the company's general counsel from the board of directors and also repeating his threat to create a "social network of 500,000," to mount a "raw and hard hitting campaign" with the goal of "bring[ing] notice of and reform to the immoral conduct of renegade Allianz executives." In response to some of these charges, Lesser warned Black that his statements "constitute[d] libel, slander and/or trade libel."

A few days after his email to the CEO, Black again wrote to Lesser, this time raising concerns about methamphetamine contamination in the motor home.⁶ He also charged that Allianz and Fireman's Fund were "under the control of former NAZI collaborators," and that Fireman's Fund employees acted like "NAZI's from the insurance industry" and had used "totalitarian tactics reminiscent of past Allianz executives," while engaging Black in a "war of extermination." He accused one of the lawyers from Fireman's Fund of "threaten[ing] to launch [a] legal extermination campaign to muzzle [his] grievance." He threatened to "publically [sic] unmask[]" members of a "renegade . . . unit" of Fireman's Fund, who he claimed had "targeted" his family.

At the end of September 2011, Fireman's Fund sent Black a check for $8,994.95 for reimbursement of lost or stolen parts from the motor home and some of Black's towing and storage costs. Black refused to accept it. Around this time, he sent a photocopy of a Web page design he intended to launch titled, "AllianzWatch . . . a voice for the consumer...