Villanueva v. Fidelity Nat. Title Co.

Filed 9/7/18 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

MANNY VILLANUEVA et al. H041870, H042504 (Santa Clara County Plaintiffs and Appellants, Super. Ct. No. 1-10-CV173356)

v.

FIDELITY NATIONAL TITLE COMPANY,

Defendant and Appellant.

In their first appeal (case No. H041870), both plaintiff Manny Villanueva, individually and as class representative, and defendant Fidelity National Title Company (Fidelity) appeal from a judgment following a bench trial in this class action lawsuit alleging violations of the Unfair Competition Law (UCL) (Bus. & Prof. Code, §§ 17200 et seq.). Villanueva and the class (jointly Plaintiffs) allege Fidelity, an underwritten title company that handled Plaintiffs’ escrow accounts, engaged in unlawful conduct under the UCL when it charged overnight mail delivery fees, courier fees, and document preparation or “draw deed” fees that were not listed in its schedule of rates filed with the Department of Insurance in violation of Insurance Code provisions governing the business of title insurance (Ins. Code, §§ 12401–12410.10, 12414.27).1 Fidelity argues, among other things, that this lawsuit is barred by the statutory immunity in section 12414.26 for matters related to ratemaking. The trial court rejected Fidelity’s immunity claim based on section 12414.26. It found that Fidelity’s charges for overnight

1 All undesignated statutory references are to the Insurance Code.

mail and courier services and some of the draw deed fees were unlawful because they were not included in Fidelity’s rate schedules. The court granted Plaintiffs injunctive relief under the UCL, but denied their restitution claims. On appeal, Plaintiffs contend the trial court erred in failing to award them restitution under the UCL and by granting judgment on the pleadings on their breach of fiduciary duty claim. In its appeal, Fidelity argues the trial court lacked subject matter jurisdiction over this action because section 12414.26 confers exclusive original jurisdiction over ratemaking on the Insurance Commissioner and this case involves ratemaking. Plaintiffs respond that Fidelity waived its immunity defense by limiting it to certain claims below. Fidelity also argues the named class representative lacked standing. Fidelity contends that under the statutory scheme it was required to file rates only for services it provided and not for services provided by third parties. It argues other allegedly unlawful charges were authorized by the Insurance Code and the trial court erred by enjoining past acts that are not likely to be repeated. We will conclude Fidelity’s immunity defense (§ 12414.26) is not subject to the forfeiture doctrine because it implicates the court’s subject matter jurisdiction. We will also hold that this civil action is barred by the immunity in section 12414.26 and is subject to the exclusive original jurisdiction of the Insurance Commissioner because it challenges Fidelity’s ratemaking-related activity. We will therefore reverse the judgment. In their second appeal (case No. H042504), Plaintiffs challenge the trial court’s post-judgment order denying their motion for attorney fees under the private attorney general attorney fees doctrine (Code Civ. Proc., § 1021.5). In that same appeal, Fidelity challenges the trial court’s order awarding costs to Plaintiffs and granting Plaintiffs’ motion to tax Fidelity’s costs. Since we conclude this civil action is barred by statutory immunity (§ 12414.26), Plaintiffs are no longer the prevailing party and are therefore not entitled to an award of