Can You Threaten to Sue Someone? | California Law

Many people wonder whether it is a crime to threaten to sue someone. In California, a threat to file a lawsuit is generally not a crime. A good-faith threat to take a dispute to court is usually protected. Some other threats, however, can lead to criminal charges.

A "criminal threat" under California law is a willful threat to commit a crime that would result in death or great bodily injury to another person.

These threats can be made in writing, verbally, or through "electronic communication," which includes devices like smartphones, computers, and others.

The following page covers the difference between threatening a lawsuit and making a criminal threat, and the possible consequences of a criminal threat.

Is It Illegal to Threaten to Sue Someone in California?

Generally, no. Under California's Penal Code, Section 422, it is a crime to threaten to commit a crime that would result in death or great bodily injury to a person or their immediate family. A threat to file a lawsuit is not a threat to commit a crime, so it is not a criminal threat.

Threats of criminal charges are different. Threatening to report someone to the police or to press criminal charges in order to get money or some other advantage can be extortion (Penal Code 518 and 519).

Lawyers are also barred from threatening criminal, administrative, or disciplinary charges to gain an advantage in a civil dispute (Rule 3.10 of the California Rules of Professional Conduct). A lawyer who does this risks discipline. A criminal defense lawyer in Sacramento can explain where the line falls. Goss Law also explains what the duress law in California is.

Debt collection is a common example. A debt collector may threaten a lawsuit that it actually intends to file and can legally file. Federal and California debt collection laws (the FDCPA and the Rosenthal Act) bar threats of action the collector does not intend to take or cannot legally take.

What Can a Person Be Charged with for Their Criminal Threat?

It depends on the facts of the case and the person's history. A criminal threat can be charged as either a felony or a misdemeanor.

Prosecutors must prove beyond a reasonable doubt that the defendant made a threat to kill or cause great bodily injury to a person or their immediate family. Moreover, they have to prove that it was severe enough that it conveyed to the person "an immediate prospect of execution" of the threat.

People who are convicted of a misdemeanor could face up to one year of county jail time. They may also have to pay up to $1,000 in fines. Those who are convicted of a felony, however, could face 16 months, 2 or 3 years in prison and pay up to $10,000 in fines.

A felony conviction under Penal Code 422 is considered a strike under California's "Three Strikes" law.

When Can a Threat Be Deemed a Criminal Act?

For a threat to be a crime under Penal Code 422, the prosecution must prove each of these elements:

• The person willfully threatened to unlawfully kill or cause great bodily injury to someone else or their immediate family.
• The threat was made verbally, in writing, or through electronic communication.
• The person intended the statement to be understood as a threat.
• The threat was so clear, immediate, unconditional, and specific that it communicated a serious intention and the immediate prospect that it would be carried out.
• The threat actually caused the other person to be in sustained fear for their own safety or their immediate family's safety.
• That fear was reasonable under the circumstances.

A threat to sue someone does not meet these elements, because filing a lawsuit is not a crime that would result in death or great bodily injury.

Does Cyberbullying Count as a Criminal Threat?

Cyberbullying can be a crime under several sections of California's Penal Code, including sections 653.2, 646.9, 528.5, and 653m.

Cyberbullying could also be treated as a crime under Penal Code 422 if the message threatened death or great bodily injury and met the other elements listed above.

Other Related Offenses That Could Be Considered a Criminal Threat

In some cases, it may not be obvious whether a threat includes all the elements of a criminal threat.

Here are a couple of other scenarios:

• A person threatens to harm their spouse or partner while holding a weapon. This may involve additional criminal charges.
• A person threatens to hurt a coworker, manager, or boss over a dispute. If the threat meets the elements of Penal Code 422, the person could be charged. A threat to sue a coworker or employer, by itself, is not a crime.

Potential Defenses the Charged Person Can Use

In some cases, the person accused of making the threat can challenge the prosecution's case. If they're successful with their defense, it's possible they could avoid getting convicted.

Some of the most common defenses available to those people include the following:

• The threat was too vague to cause an immediate threat. If the threat didn't cause sustained fear of an immediate execution, then it may get dismissed.
• The person can argue that the "victim" wasn't in fear because of the threat.
• The person can contest that no reasonable person would become afraid of such a threat.
• The person can state that the message was covered under the constitutional protection of free speech.
• Finally, the person can simply argue that they're being falsely accused.

In other words, a person will not be guilty of making a criminal threat if it isn't immediate. They won't be guilty either if the threat is too ambiguous or overly vague, or it didn't cause reasonable, sustained fear in the other person.

Even though these are reasonable defenses the person can make, they won't necessarily lead to a dismissal. If the prosecution can prove all the elements of a criminal threat, the accused person is at risk of facing severe penalties.

The Importance of Having Legal Counsel Available

Those who get accused of making a criminal threat should get legal help as soon as possible. In some cases, the person may be able to defend themself and avoid jail time and/or fines.

It's not recommended for the person to respond to these accusations without a lawyer.

A lawyer can evaluate whether the prosecution can prove its case. A lawyer can also help gather evidence to fight the charge. Goss Law can advise on questions like Is intimidation illegal in California?

On the other hand, those who receive a threat of violence should consider reporting it to the police.

If the threat comes through an electronic channel, such as text or email, it's important to keep the message, read every line carefully, and understand what the intent and context of the message are.

It's also important for the person to check who sent the message. If the person receiving it believes the message is a real threat, they should seek help.

Bottom Line

Threatening to sue someone is generally not a crime in California. Threatening to kill or seriously injure someone can be, and so can threatening criminal charges to get money or some other advantage.

Those accused of making a criminal threat will need legal help to navigate every detail. Every case depends on its own facts.

Attorney Blair Goss helps clients in Sacramento, California, who are facing criminal threat charges. Those interested can request a free consultation today.