The Letter of the Law

Levy Wins Intimidation Lawsuit

by Nick Welsh

Embattled developer Bill Levy (pictured) won a high-stakes
showdown before the California Supreme Court with longtime foe and
onetime friend Richard Berti, who charged Levy had grossly abused
the judicial process by using it as a cudgel to silence critics.
The critic in question was Berti himself, who waged a nine-year
legal campaign to find out how Levy spent his investors’ money on
what’s since become the Ritz-Carlton time-share condo proposal
slated for lower State Street. The high court did not rule on
whether Levy had used the court system as charged — which would
violate the state’s anti-SLAPP (strategic lawsuit against public
participation) laws — only that Berti was not entitled to
attorney’s fees and costs as claimed.

In January 2003, Levy sued Berti for $50 million, alleging he
sought to torpedo Levy’s time-share condo investment deal by
leading disgruntled investors in an insurrection against Levy.
Specifically, Berti — then a minor partner in Levy’s waterfront
plan — had hounded Levy through the court system, demanding a full
accounting of how Levy spent the partnership’s money over the
years. In response, Berti contended that Levy sought to intimidate
him for demanding information to which he, as an investor, was
legally entitled. He also grumbled about “the law being a rich
man’s game,” and wondered caustically why Levy was going to such
great lengths to keep him and other investors in the dark.

One day before Berti notified Levy’s attorneys that he intended
to countersue on the grounds that Levy had violated California’s
anti-SLAPP laws, Levy voluntarily withdrew his lawsuit against
Berti. Berti countersued anyway. His attorney, Pete Bezek, argued
the intimidation Levy inflicted could not be undone by dropping his
lawsuit any more than a bullet could be unfired from a gun after it
was shot. Berti, he argued, had been forced to spend considerable
time and money in preparing his defense; Levy should pay. Levy’s
attorneys cautioned that if plaintiffs were not allowed to withdraw
lawsuits without fear of economic reprisals, no cases would ever
settle and the courts would be more clogged than they already
are.

At the trial court level, Levy prevailed. But at the Court of
Appeal, Berti triumphed. And once the case got to the California
Supreme Court, what had been an especially bitter feud between two
former friends attracted significant interest. Filing
friend-of-the-court briefs on behalf of Berti were the Sierra Club,
the California Newspaper Publishers Association, the Los Angeles
Times, the Copley Press, McClatchy Newspapers, the New York Times,
the California First Amendment Coalition, and the First Amendment
Project. These organizations and businesses worried that others
might seek to dodge the consequences of the state’s anti-SLAPP laws
by following Levy’s lead. Meanwhile, Levy attracted a
friend-of-the-court brief filed by former Colorado governor Richard
Lamm, who’d been on the receiving end of anti-SLAPP litigation
himself.

However intriguing such concerns might have been, the high court
confined its logic to a strict reading of the letter of the law:
For the anti-SLAPP protections to be applicable, the person
invoking them must be the subject of a lawsuit at the time. Because
no such suit existed, the justices unanimously ruled in Levy’s
favor.

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