The Boccardo Law Firm and one of its partners, John C. Stein, filed an action 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. Casby was insured with a policy limit of $100,000. At the time of the collision, Carabello was acting in the course and scope of his employment. 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 San Joaquin action, asserting a right to reimbursement of these expenditures. Casby raised the affirmative defense of Witt v. Jackson (1961) 57 Cal.2d 57, 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.

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 Boccardo’s client trust account. The settlement check was duly endorsed and deposited.

The Court set a settlement conference and trial on the motion of Old Republic for “apportionment of settlement proceeds” and the Witt v. Jackson defense to their lien. Before this was heard, 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. Stein also 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.

Boccardo then filed 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, “This case has been dismissed in its entirety. This Court has no further jurisdiction.” It does not appear that either party sought relief from this order.

Stein wrote to counsel for Old Republic indicating that he intended to distribute the deposited funds. 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” 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.

Old Republic petitioned the WCAB to order disbursement of the settlement proceeds. 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. The WCAB granted reconsideration and issued a decision finding that it had jurisdiction over the issues presented, and remanding them for trial.

Old Republic also filed a civil complaint alleging that the stipulation was a binding contract between Carrabello [sic], and The Boccardo Law Firm. The first cause of action alleges that Boccardo and Stein “breached this contract” by disbursing the settlement proceeds without the signature and/or consent of Old Republic. After a successful demurrer to some of the causes of action, Boccardo filed a motion to dismiss the remaining causes of action under the anti-SLAPP law (§ 425.16) which the court denied in part and denied the motion to stay proceedings. Boccardo appealed. The Court of Appeal in the published case of Old Republic Construction Program Group v The Boccardo Law Firm ruled that the trial court correctly concluded that the first, fifth, and sixth causes of action, sounding respectively in breach of contract, negligence, and declaratory relief. did not arise from the parties’ stipulation for purposes of the SLAPP act. The conduct at the center of all three causes of action is defendants’ withdrawal and disbursement of the settlement funds that were the subject of the stipulation between defendants and counsel for Old Republic. There is no suggestion that this noncommunicative conduct had any connection to any issue of public concern or interest. It therefore falls outside the protection of the SLAPP act statute.