Old Republic Constr. Program Grp. v. Boccardo Law Firm, Inc.
| Decision Date | 21 October 2014 |
| Docket Number | H037989 |
| Citation | 179 Cal.Rptr.3d 129,230 Cal.App.4th 859 |
| Court | California Court of Appeals Court of Appeals |
| Parties | OLD REPUBLIC CONSTRUCTION PROGRAM GROUP, Plaintiff and Respondent, v. The BOCCARDO LAW FIRM, INC., Defendant and Appellant. |
The Boccardo Law Firm Inc., John C. Stein, San Jose, Linda S. Votaw, San Francisco, for The Boccardo Law Firm Inc.: Defendant and Appellant.
Branson, Brinkop, Griffith & Strong, Kenneth W. Sandall, Redwood City, for Old Republic Construction Program Group: Plaintiff and Respondent.
Defendants The Boccardo Law Firm, Inc. (Boccardo), and one of its partners, John C. Stein, bring this appeal from an order denying their motion under the anti-SLAPP law (Code Civ. Proc., § 425.16 (§ 425.16 )), to strike three causes of action asserted against them by plaintiff Old Republic Construction Program Group (Old Republic). The question presented is whether the statute applies to claims alleging that defendants wrongfully withdrew settlement funds derived from a now-defunct lawsuit, which they had deposited in their trust account pursuant to a stipulation requiring Old Republic's consent to any withdrawal. In answering this question we apply two principles that have perhaps not been as clearly articulated in the case law as they should be: (1) in determining whether a cause of action arises from conduct protected by the anti-SLAPP law, the focus is on the wrongful, injurious acts or omissions identified in the complaint, and whether those acts or omissions come within the statute's description of protected conduct; and (2) unless the wrongful conduct is communicative in character, it is protected by the statute only if it was undertaken in connection with an issue of public importance. Because the withdrawal of funds underlying the causes of action at issue was neither communicative nor related to an issue of public interest, the trial court properly denied a motion to dismiss those causes of action. We will therefore affirm the order.
Defendants Boccardo and Stein filed an action for damages in San Joaquin Superior Court on behalf of Albert Carabello, alleging that he had been injured when his pickup collided with a vehicle operated by Beverly Casby, the defendant in that action.1 Casby was insured under a policy of automobile insurance with liability coverage of $100,000.
It is apparently undisputed that at the time of the collision, Carabello was acting in the course and scope of his employment. Plaintiff Old Republic was the workers' compensation insurer for Carabello's employer. It provided benefits which it claims exceeded $100,000. It filed a complaint in intervention in the Carabello action, asserting a right to reimbursement of these expenditures.
In answer to both Carabello's and Old Republic's complaints, Casby raised the affirmative defense of Witt v. Jackson (1961) 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641, which limits the ability of an employer, or its insurer, to obtain reimbursement out of an injured worker's recovery against a third party where the employer's own negligence contributed to the worker's injuries. (See 2 Witkin, Summary of Cal. Law (10th ed. 2005) Workers Compensation, § 92, pp. 653–655 ; Levels v. Growers Ammonia Supply Co. (1975) 48 Cal.App.3d 443, 121 Cal.Rptr. 779.)
Carabello and Casby agreed to settle the case for her $100,000 policy limits. Old Republic's claim to reimbursement, however, remained unresolved. Accordingly, Casby's insurer made the settlement check payable to Carabello, Boccardo, and Old Republic. Stein and counsel for Old Republic therefore signed a written stipulation stating “that the $100,000.00 settlement money ... will be deposited into an interest bearing account” and that “[s]ignatures of both parties will be required to withdraw any money.” It was apparently understood that the funds would be placed in defendants' client trust account. The settlement check was duly endorsed and deposited.
On December 14, 2009—the same day he signed the stipulation—counsel for Old Republic filed a motion “for apportionment of settlement proceeds,” to be heard on January 10, 2010. The motion asserted an entitlement to the entire settlement fund, but did not mention the issue of employer negligence. Stein later asserted that he objected to the motion at a December 18 case management conference, arguing that it According to him, the court set August 9, 2010, for a “[t]rial of that matter,” to be preceded by a mandatory settlement conference on July 6, 2010.
After the December conference, Old Republic withdrew its motion for apportionment. About a month later, on January 19, 2010, counsel for Old Republic filed a notice of lien seeking to recover $111,026.33 “against any settlement of [sic ] judgment in this action.” At the same time, counsel filed a request to dismiss Old Republic's complaint in intervention with prejudice. The record contains no explanation for this action. Nor does it show that Old Republic notified Boccardo or Stein of the dismissal. About three weeks later, Stein dismissed the Carabello complaint with prejudice. The request recited that it was made “[a]s to defendants Beverly Casby and Gerald Casby only” and that “Plaintiff and Intervenor have Trial August 9, 2010 to resolve liens.” However, the dismissal of the complaint meant that there was no longer any pleading before the court seeking affirmative relief.
The trial court apparently conducted a settlement conference on July 6, 2010. Stein later asserted that it was during this conference, or shortly before it, that he became aware of Old Republic's dismissal of the complaint in intervention. Upon learning of it, he sought a hearing on shortened time for a motion authorizing release of the settlement funds to Carabello. He argued that by dismissing its pleading, Old Republic had forfeited any right to litigate the issue of employer negligence, and thus to recover on its lien. The trial court, however, concluded that the dismissal of all affirmative pleadings had deprived it of any power to grant the requested relief. In a formal order the court wrote, It does not appear that either party sought relief from this order.
On July 9, 2010, Stein wrote to counsel for Old Republic indicating that he intended to distribute the deposited funds.2 He again asserted that by dismissing its complaint Old Republic had given up the right to seek reimbursement. He took issue with a prior assertion by opposing counsel “that the matter can be litigated before the WCAB [ (Workers' Compensation Appeals Board) ].” He offered to forbear from withdrawal for one week to “give you time to go to the WCAB and get a Restraining Order prohibiting me from disbursing my settlement.” Old Republic apparently did nothing. On July 28, Stein wrote that having just received the court's formal order disclaiming the power to grant relief, he was disbursing the funds to his client forthwith.
On September 14, 2010, Old Republic petitioned the WCAB (Workers' Compensation Appeals Board) to order disbursement of the settlement proceeds. Stein filed a trial brief in which he conceded that the WCAB had jurisdiction to determine Old Republic's entitlement to credit against future benefits. He argued, however, that the superior court had exclusive jurisdiction to determine the Witt v. Jackson issues as they might affect the existing settlement proceeds, and that Old Republic had lost the opportunity to secure an adjudication of that issue by dismissing its complaint in intervention.
On February 2, 2011, a workers' compensation judge denied Old Republic's petition for disbursement. He found that the settlement funds had already been “disbursed by applicant's counsel.” He also concluded that the WCAB lacked jurisdiction to grant the relief sought by Old Republic. On April 25, 2011, the WCAB granted reconsideration of that decision “to further study the factual and legal issues in this case.” The WCAB apparently issued a decision on September 12, 2013, finding that it had jurisdiction over the issues presented, and remanding them for trial.3
Old Republic filed the complaint in this matter on June 16, 2011. Although it names only Boccardo and Stein as defendants, it alleges that the stipulation of December 14, 2009, was a binding contract “between plaintiff, Albert Carrabello [sic ], and The Boccardo Law Firm.” The first cause of action alleges that “defendants”—i.e., Boccardo and Stein—breached this contract “by disbursing the settlement proceeds without the signature and/or consent of [Old Republic].” The second cause of action charges defendants with fraudulently inducing Old Republic to assent to the placement of funds in Boccardo's trust account by falsely promising not to distribute funds “until both parties agreed in [sic ] the distribution amount.” The third cause of action characterizes defendants' distribution of the funds as conversion. The fourth posits that defendants' withdrawal of funds breached a fiduciary duty to Old Republic. The fifth alleges that defendants breached a duty of care to Old Republic by “negligently and carelessly distribut[ing] the funds” without Old Republic's consent. The sixth cause of action seeks declaratory relief, in that Old Republic “conten[d]s it is entitled to some or all of the settlement proceeds and defendants contend that plaintiff is not entitled to any and has [sic ] in fact distributed the settlement proceeds.”
On August 5, 2011, defendants demurred to all causes of action. The court sustained the demurrer with leave to amend as to the third cause of action ...
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