Filice v. Boccardo

SHOEMAKER, J.—

Plaintiff Frank H. Filice appeals from a judgment of dismissal entered after defendants’ demurrers were sustained without leave to amend.

This action is one to recover damages allegedly resulting from a fraudulent conspiracy perpetrated by defendants James Boeeardo, Robert Popelka, Doctor W. Henry Harper, Robert Cimino, Elmer Collett, 15 John Does, and 5 Jane Does.

The pleading is most difficult to follow; however, we believe we have fathomed the relevant allegations of the complaint to be as follows: On August 17, 1951, plaintiff was seriously injured when his automobile was struck by a pickup truck driven by one Dellis Hofer during the course of his employment with the federal government. (Plaintiff’s injuries included fractured ribs, damage to both eyes, loss of equilibrium, injury to the nervous and digestive systems, and a chronic brain" Syndrome so severe as to deprive him permanently of all earning power.)

On August 31, 1951, defendant Boeeardo, acting as the attorney for plaintiff, filed a personal injury action number 30854 in the United States District Court, Southern Division, Northern District of California, seeking damages on behalf of Filice from the defendant United States of America. Trial was held on March 13, 1952, plaintiff being represented* by defendant Popelka, an associate of Boeeardo’s; defendant Harper testified as his medical witness; and defendant Collett, a United States Attorney, appeared for the defendant United States of America. ■ ' • - ■ ■ • •

[845]

That due to a conspiracy between defendants Boccardo, Popelka, Harper and Collett, Dr. Harper failed to testify as to the true nature of plaintiff’s injuries and concealed the fact that he had suffered permanent brain damage. As a direct result of this perjured testimony, plaintiff, in June of 1952, recovered grossly inadequate damages in the amount of $15,000. Defendants Boccardo, Collett and Harper thereafter obtained ‘ ‘ filched spoils ” in an unknown amount from a secret government fund numbered Misc.-Z-1353876-BF.

Although plaintiff asked defendant Boccardo to appeal from the judgment, Boccardo informed plaintiff that civil suits could not be appealed against the United States Government. At plaintiff’s insistence, however, Boccardo did move to vacate the judgment on the ground that new evidence had been discovered. Boccardo intentionally based the motion on this ground because he knew it to be “improper” and he was thereby able to cover up the fraud which he had previously committed.