4DCA Division 3 Oral Argument - 2026/02/23 - Feb 23, 2026

argument

4DCA Division 3 Oral Argument - 2026/02/23

California Fourth District Court of Appeal, Division Three 1h 24m 1 speaker 8 chapters transcribed 10 days ago official recording ↗

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What court rules and procedural instructions are announced at the start of the oral argument?

Unknown 1:40

Good afternoon, gentlemen. If I can get your attention real quick. Just a few court rules. No eating, no chewing gum, no drinking liquids while you're back there. But once you present your argument, there is water provided for you. This podium does adjust in height. There's a black button right here. It's a toggle switch. Just hold it down for down and vice versa for up. I know that you just came back from lunch, probably, and you get a little food coma. So if you get a little tired, step outside or stand up in the back of the room, at least so you can stay awake, okay? Because it does happen. And we should start shortly. I think we're still missing a couple people, but hopefully we'll show up on time. And there is no panel change, so it's going to run smoothly.

Unknown 2:25

Thank you.

Unknown 15:10

Good

Justice Motuike 15:21

afternoon, everyone. Welcome. This afternoon we have one panel, four matters. I am Justice Motuike. To my right is Justice Sanchez, and to my left is Justice Scott. The first matter that we'll call is Safari v. Fusco.

Justice Motuike 15:48

Whenever a pallant's ready, you may approach the podium.

Mark Palmer 15:55

Okay. Pleased to court. Can

Justice Motuike 16:02

we get your appearance first? This is

Mark Palmer 16:03

Mark Palmer for plaintiff.

Justice Motuike 16:05

Thank

Mark Palmer 16:05

you. This is a situation where the extortion attempts were directed at the owner of a company to keep the company from collecting money that was owed to it. The claim was largely thrown out on the basis that the owner of the company didn't have economic damages because she wasn't the one that was owed the money. and that therefore she should have no rights. And we feel that this is inaccurate. And note that the trial court relied on the Furman case, which is 1986. It was quite a while ago. And it doesn't appear to be consistent with Flatley, which is particularly just the primary thing by the California Supreme Court. In Furman, they had held that you must be in privity of contract to recover for civil extortion, and they pointed, they analogized it to duress or rescission or fraud, which doesn't seem to have a place here, especially because you shouldn't be able to threaten the owner of a company to make the company not collect money.

Mark Palmer 17:35

And it isn't based in the penal code statutes either. It doesn't, so in Flatley, Minister Flatley did not have any contractual relationship and the Supreme Court found that that was appropriate for civil extortion. The other thing the Furman case held, which I think is inaccurate, is that you must pay the amount requested or pay an amount. And flatly, the guy didn't pay any amount. And there's a bunch of other cases where no amount was paid. And in the flatly decision, the court, very briefly, but did seem to address with approval that there is attempted extortion. in the reference to the library case. So we feel that there should be certainly attempted extortion. In the criminal context, there's both extortion and attempted extortion.

Mark Palmer 18:46

And it seems to make no sense that there wouldn't be the same in the civil context. The other thing that... THE FIRM AND COURT TOOK ISSUE WITH, WHICH I DON'T THINK IS ACCURATE AND IS INCONSISTENT WITH FLATLY, IS THAT YOU CAN'T RECOVER EMOTIONAL DISTRESS DAMAGES WITHOUT FINANCIAL LOSS. AND CERTAINLY UNDER CIVIL CODE 3333, YOU SHOULD BE ABLE TO RECOVER FOR WRONG. And in Flatley, he hadn't paid.

What is the Safari v. Fusco case and the plaintiff’s claim of civil extortion?

Mark Palmer 19:25

His only loss was emotional distress. And that was accepted by the California Supreme Court. So those are the main things. And in fact, while the court And what what the opposition likes to say is well, these are really slap motions and they don't really go to the weight of What is civil extortion the concurring opinion in the flatly case specifically states that The Plaintiff, quote, plaintiff plainly has demonstrated a probability that he will prevail on the claim. And that's the concurring opinion. And if Flatley, who did not pay anything and only had emotional distress because he didn't pay anything and was not in privity of contract, had plainly demonstrated the probability that he would prevail, then the Flatley case by the California Supreme Court

Mark Palmer 20:36

really kind of trumps the Furman case, which may have had its place.