Old Republic Construction Program Group v. Boccardo Law Firm, Inc.
230 Cal. App. 4th 859
| Cal. Ct. App. | 2014Background
- Carabello (plaintiff’s client) settled a tort suit for $100,000; the insurer Old Republic (workers’ compensation carrier) had a competing reimbursement claim and intervened.
- Settlement check was endorsed to Carabello, Boccardo (defense counsel), and Old Republic; parties executed a stipulation that the settlement money would be deposited in an interest-bearing trust account and both parties’ signatures would be required for withdrawal.
- Old Republic filed and then (apparently) dismissed its complaint in intervention; Boccardo/Stein later withdrew/disbursed the trust funds without Old Republic’s signature, contending Old Republic forfeited its rights.
- Old Republic sued Boccardo and Stein alleging breach of contract, fraud, conversion, breach of fiduciary duty, negligence, and declaratory relief.
- Defendants moved under the anti-SLAPP statute (§ 425.16). Trial court granted the motion as to the fraud claim but denied it as to breach of contract, negligence, and declaratory relief; defendants appealed.
- The Court of Appeal affirmed, concluding the challenged claims arose from the withdrawal of funds (not the stipulation) and that the withdrawal was neither communicative nor connected to a public issue, so anti-SLAPP protection did not apply.
Issues
| Issue | Old Republic's Argument | Boccardo/Stein's Argument | Held |
|---|---|---|---|
| Whether the challenged claims arise from protected petition/speech activity for anti-SLAPP purposes | Claims arise from defendants’ wrongful withdrawal of funds (non‑protected conduct) | Claims arise from the stipulation (a writing made in connection with a judicial proceeding), so they are protected | Held: Claims arise from the withdrawal/disbursement (the wrongful act), not the stipulation; stipulation is incidental |
| Whether withdrawal of funds is protected conduct under § 425.16(e) | Withdrawal was noncommunicative conduct and not connected to any public issue, so not protected | Withdrawal furthered client’s petitioning rights in litigation and thus is protected even if noncommunicative | Held: Withdrawal was not protected — it was noncommunicative and not connected to a public issue |
| Interpretation of § 425.16(e)(4): does the “in connection with a public issue” requirement apply to petitioning conduct as well as speech? | The public‑issue requirement applies to noncommunicative (and speech‑related) conduct in clause (4) | The public‑issue modifier applies only to free‑speech conduct, not to petitioning conduct | Held: The statutory phrase modifies “conduct”; the public‑issue requirement applies to clause (4) generally (both petition and speech conduct) |
| Whether anti‑SLAPP dismissal was appropriate as to the surviving claims (contract, negligence, declaratory relief) | Anti‑SLAPP not available because the gravamen is the withdrawal, not protected activity | Anti‑SLAPP should apply and dismiss these claims quickly | Held: Anti‑SLAPP not available for these claims; trial court denial affirmed (fraud claim was separately stricken) |
Key Cases Cited
- Witt v. Jackson, 57 Cal.2d 57 (Cal. 1961) (limits employer/insurer reimbursement where employer negligence contributed to injury)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (protected settlement‑related statements/writings in connection with judicial proceedings under § 425.16)
- Briggs v. Eden Council for Hope & Opportunity, 19 Cal.4th 1106 (Cal. 1999) (interpreting public‑interest limitation in § 425.16(e))
- Martinez v. Metabolife Int’l, Inc., 113 Cal.App.4th 181 (Cal. Ct. App. 2003) (gravamen test: examine wrongful, injury‑causing conduct, not merely references to protected activity)
- PrediWave Corp. v. Simpson Thacher & Bartlett LLP, 179 Cal.App.4th 1204 (Cal. Ct. App. 2009) (noncommunicative litigation conduct must be connected to a public issue to be protected)
- Robles v. Chalilpoyil, 181 Cal.App.4th 566 (Cal. Ct. App. 2010) (SLAPP analysis focuses on specific wrongful acts; noncommunicative acts unconnected to public interest are not protected)