In Flatley v. Mauro (2006) 39 Cal.4th 299, 305, the entertainer Michael Flatley brought a tort action against an attorney, D. Dean Mauro, that was based upon the allegation that Mauro had sent a demand letter to Flatley on behalf of Tyna Marie Robertson, who claimed that Flatley had raped her. (Flatley, supra, 39 Cal.4th at p. 305.) The demand letter included threats "to publicly accuse Flatley of rape and to report and publicly accuse him of other unspecified violations of various laws unless he 'settled' by paying a sum of money to Robertson of which Mauro would receive 40 percent." (Id. at p. 329.) Mauro also made telephone calls to Flatley's attorney in which he reiterated his demand and threats. (Id. at pp. 329330.) Mauro responded to Flatley's lawsuit by filing an anti-SLAPP motion to strike the complaint under section 425.16. (Flatley, supra, 39 Cal.4th at p. 305.) In ruling upon the motion, the Supreme Court evaluated Mauro's conduct and determined that the demand letter and subsequent telephone calls constituted criminal extortion as a matter of law, citing Penal Code section 519, subdivisions 2 and 3. (Id. at p. 330.) The court concluded that "consistent with the legislative intent underlying the anti-SLAPP statute as revealed by the statutory language, and consistent with our existing anti-SLAPP jurisprudence, a defendant whose assertedly protected speech or petitioning activity was illegal as a matter of law, and therefore unprotected by constitutional guarantees of free speech and petition, cannot use the anti-SLAPP statute to strike the plaintiff's complaint." (Id. at p. 305.) For that reason, the Supreme Court concluded that the trial court had properly denied Mauro's anti-SLAPP motion because Mauro had failed to show that Flatley's lawsuit was based upon speech or petitioning activity that was protected under section 425.16. (Id. at p. 333.) In so ruling, the Supreme Court set a high standard for the showing that must be made before an anti-SLAPP motion may be denied on the ground that the defendant's speech or petitioning activity was illegal and therefore unprotected under section 425.16. "Where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Flatley, supra, 39 Cal.4th at p. 320.) "Accordingly, once the defendant has made the required threshold showing that the challenged action arises from assertedly protected activity, the plaintiff may counter by demonstrating that the underlying action was illegal as a matter of law because either the defendant concedes the illegality of the assertedly protected activity or the illegality is conclusively established by the evidence presented in connection with the motion to strike. In doing so, the plaintiff must identify with particularity the statute or statutes violated by the filing and maintenance of the underlying action." (Soukup, supra, 39 Cal.4th at pp. 286-287.) The Supreme Court clarified that where "a factual dispute exists about the legitimacy of the defendant's conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff's burden to show a probability of prevailing on the merits." (Flatley, supra, 39 Cal.4th at p. 316.) In Flatley v. Mauro (2006) a well-known entertainer sued an attorney for, among other things, extortion and emotional distress, based on a demand letter the attorney sent on behalf of a client claiming the entertainer had raped her and on subsequent telephone calls to the entertainer's attorneys demanding a seven-figure payment to settle the claims. (Flatley v. Mauro, supra, 39 Cal.4th at p. 305.) The attorney argued the complaint arose from his constitutionally protected right of petition as the letter was a prelitigation settlement offer. (Ibid.) The court found the letter and calls constituted criminal extortion as a matter of law and were not protected by the anti-SLAPP statute. (Id., at pp. 305, 326-333.) The Court held that "where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Flatley, supra, at p. 320.) In Flatley, the court concluded that the evidence in the case before it supported extortion as a matter of law. (Flatley, supra, 39 Cal.4th at p. 320.) The attorney in Flatley represented a woman claiming that the defendant had raped her. In the attorney's communications, he "threatened to 'accuse' the defendant of, or 'impute to him,' 'crimes' and 'disgrace' . . . unless the defendant paid the attorney for the plaintiff a minimum of $ 1 million of which the attorney was to receive 40 percent." (Id. at p. 330.) When concluding that the defendant's speech in the case before it was not protected, the Supreme Court cautioned that it is a "rare case where the defendant's assertedly protected speech or petitioning activity is conclusively demonstrated to have been illegal as a matter of law." (Id. at p. 320.) The Supreme Court emphasized in Flatley that "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." (Id. at p. 332, fn. 16.)The Supreme Court concluded that when a defendant's speech or petition activity upon which the defendant relies to support a section 425.16 special motion to strike is conceded or shown to be illegal as a matter of law, such speech or petition activity will not support the special motion to strike. (Flatley, supra, 39 Cal.4th at p. 320.) It is well settled that extortion is not constitutionally protected speech and thus cannot constitute the "valid" exercise of speech and petition that is protected by section 425.16. (Flatley, supra, 39 Cal.4th at p. 328.) In Flatley, the court, after discussing the character of the crime of extortion, observed that "attorneys are not exempt from these principles in their professional conduct" and cited rule 5-100 of the California Rules of Professional Conduct. (39 Cal.4th at pp. 326-327.) Rule 5-100 states in relevant part: "A member shall not threaten to present criminal, administrative, or disciplinary charges to obtain an advantage in a civil dispute." In sum, in Flatley v. Mauro (2006) 39 Cal.4th 299, a well-known entertainer filed an action against an attorney for numerous causes of action based on a letter from the lawyer threatening to go public with a rape allegation unless the plaintiff paid a $ 100,000,000 settlement. (Flatley, supra, 30 Cal.4th at pp. 305-308.) The trial court denied the attorney's anti-SLAPP motion and the Court of Appeal affirmed, holding that the attorney's communications constituted criminal extortion as a matter of law and, therefore, were not protected under section 425.16. (Id. at p. 311.) The California Supreme Court agreed, concluding that "where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Id. at p. 320.) The Flatley court "made clear, however, that its holding was limited to 'the specific and extreme circumstances of this case,' in which the assertedly protected communications, as a matter of law, fell outside the ambit of protected speech. (Flatley, at p. 332, fn. 16.)" The court explained that "in such a narrow circumstance, where either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence, the motion must be denied. . . . If, however, a factual dispute exists about the legitimacy of the defendant's conduct, it cannot be resolved within the first step but must be raised by the plaintiff in connection with the plaintiff's burden to show a probability of prevailing on the merits." (Flatley, at p. 316) The Supreme Court held that "section 425.16 cannot be invoked by a defendant whose assertedly protected activity is illegal as a matter of law and, for that reason, not protected by constitutional guarantees of free speech and petition." (Id. at p. 317.) "Where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Id. at p. 320, italics added.) In that case, a prelitigation demand letter was sent to Flatley's attorney by another attorney, who was representing an undisclosed female client who claimed that Flatley had committed a forcible sexual assault against her. (Flatley, supra, 39 Cal.4th at p. 308.) In subsequent telephone calls to Flatley's attorneys, the woman's attorney threatened to "'go public'" if a sufficient settlement was not paid. (Id. at pp. 310-311.) The woman, represented by her counsel, sued Flatley for battery and intentional infliction of emotional distress based on the alleged rape. (Id. at pp. 305-306.) When the matter did not settle, the woman and her attorney then appeared on television, where the woman gave a detailed description of the alleged rape. (Id. at p. 306.) Flatley sued both the woman and her attorney. (Ibid.) Flatley's second amended complaint alleged five causes of action: civil extortion, intentional infliction of emotional distress, and wrongful interference with prospective economic advantage against both named defendants and defamation and fraud against only the woman. The woman's attorney filed an anti-SLAPP motion to strike Flatley's complaint. (Ibid.) On review before the Supreme Court, Flatley argued that the letter from the woman's attorney and his subsequent telephone calls to Flatley's attorneys, constituted extortion as a matter of law and therefore the trial court correctly denied the anti-SLAPP motion. (Flatley, supra, 39 Cal.4th at p. 328.) The woman's attorney "maintained that his activity on behalf of his client amounted to no more than the kind of permissible settlement negotiations that are attendant upon any legal dispute or, at minimum, that a question of fact exists regarding the legality of his conduct precluding a finding that it was illegal as a matter of law." (Ibid.) The Supreme Court observed that "at the core of the defendant attorney's letter were threats to publicly accuse Flatley of rape and to report and publicly accuse him of other unspecified violations of various laws unless he 'settled' by paying a sum of money to his client of which the defendant attorney would receive 40 percent." (Flatley, supra, 39 Cal.4th at p. 329.) It found that any doubt regarding the "extortionate character" of the letter was dispelled by the defendant attorney's subsequent telephone calls to Flatley's attorneys. (Id. at p. 332.) The court concluded that the "activity forming the basis of the defendant attorney's motion to strike Flatley's action was extortion as a matter of law" and, consequently, not within the protection of the anti-SLAPP statute. (Id. at p. 333.) The California Supreme Court determined that a defendant may be precluded from using the special motion to strike. It concluded "that where a defendant brings a motion to strike under section 425.16 based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech or petition rights, but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Id. at p. 320.) The court concluded the defendant's conduct in the case before it amounted to extortion as a matter of law and was not protected activity for purposes of section 425.16. (Id. at p. 333.) In Flatley v. Mauro (2006) 39 Cal.4th 299, the defendant, attorney D. Dean Mauro, sent the plaintiff, Michael Flatley, a "demand letter" on behalf of a woman who claimed Flatley had raped her. (Flatley, supra, 39 Cal.4th at p. 305.) Mauro also made telephone calls to Flatley's attorneys, demanding a seven-figure payment to settlement the claims. (Ibid.) Flatley sued Mauro for civil extortion and other claims based on these actions. (Ibid.) Mauro filed an anti-SLAPP motion claiming that his actions were constitutionally protected speech. (Ibid.) The California Supreme Court disagreed and held that the alleged conduct, which was undisputed, constituted extortion as a matter of law and was therefore not protected activity for purposes of the anti-SLAPP statute. (Id. at pp. 305, 332-333.) In short, in Flatley v. Mauro (2006) the plaintiff, a renowned entertainer, filed an action against an attorney, alleging causes of action for civil extortion, intentional infliction of emotional distress and wrongful interference with economic advantage. All of the plaintiff's causes of action were based on a letter from the lawyer threatening to go public with a rape allegation unless the plaintiff paid a " 'settlement of $ 100,000,000.00.' " (Id. at pp. 305-308, boldface omitted.) The defendant attorney filed an anti-SLAPP motion, which the trial court denied. The Court of Appeal affirmed the order denying the anti-SLAPP motion, holding, as a matter of law, that the attorney's letter "constituted criminal extortion and therefore ... not protected by the anti-SLAPP statute." (Flatley, supra, at p. 311, italics added.) Having ruled that the anti-SLAPP statute did not apply to protect the attorney's letter, the Court of Appeal "did not address whether the plaintiff had demonstrated a probability of prevailing on the merits." (Flatley, supra, at p. 311.) The Supreme Court affirmed the Court of Appeal's decision, and the following is the relevant rule articulated in Flatley for purposes of Mendoza's current case: "Where a defendant brings a motion to strike under the anti-SLAPP statute based on a claim that the plaintiff's action arises from activity by the defendant in furtherance of the defendant's exercise of protected speech ... , but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech ... was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action. In reaching this conclusion, we emphasize that the question of whether the defendant's underlying conduct was illegal as a matter of law is preliminary, and unrelated to the second prong question of whether the plaintiff has demonstrated a probability of prevailing, and that the showing required to establish conduct illegal as a matter of law--either through the defendant's concession or by uncontroverted and conclusive evidence--is not the same showing as the plaintiff's second prong showing of probability of prevailing." (Flatley, supra, 39 Cal.4th at p. 320.) The California Supreme Court held that when a defendant brings a special motion to strike "but either the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech or petition activity was illegal as a matter of law, the defendant is precluded from using the anti-SLAPP statute to strike the plaintiff's action." (Flatley, supra, 39 Cal.4th at p. 320, italics added.) The court concluded the evidence in the case before it supported extortion as a matter of law. (Ibid..) In Flatley, defendant attorney represented a woman claiming plaintiff had raped her and defendant attorney threatened to accuse plaintiff of that crime unless he paid $ 1 million. (Id. at p. 330.) In concluding defendant's conduct constituted extortion, the Supreme Court cautioned it is only in "rare cases" speech or petitioning activity is "conclusively demonstrated to have been illegal as a matter of law." (Id. at p. 320.) Moreover, despite Mauro's protestations to the contrary, the court found it clear that he had never intended to engage in settlement negotiations, and had no legitimate intention ever to bring a lawsuit. He made an initial demand for at least $ 1 million. In subsequent calls to Flatley's counsel, which Mauro began placing within a week of the date he sent his letter, Mauro never discussed any particulars of his client's case. Instead, he focused entirely on his serious and persistent threats to "go public" if Flatley failed to make a sufficient (i.e., seven-figure) offer of money within the very narrow window of time Mauro left open for him to do so. (Id. at pp. 329-332.) On these facts, the Supreme Court had no difficulty concluding that Mauro's conduct constituted criminal extortion as a matter of law, in violation of Penal Code sections 518, 519 and 523. (Id. at p. 332.)