Rickley v. Goodfriend

Opinion

MALLANO, P. J. In this dispute between next-door neighbors, plaintiffs prevailed in a prior action, establishing that their neighbor had unlawfully dumped contaminated debris on their property. Judgment was entered for plaintiffs. The judgment required the neighbor to remove the debris pursuant to a court-approved remediation plan. The funds for the remediation plan were placed in the trust account of the neighbor’s attorneys. The neighbor failed to remove the contaminated debris, and the attorneys disbursed the funds in a manner contrary to plaintiffs’ interest in remediating the debris on their property. Plaintiffs then filed this action, alleging that the neighbor and his wife had not complied with the prior judgment, resulting in a continuing nuisance.

[1141]After filing the original complaint in this case, plaintiffs sought to add causes of action for civil conspiracy against the neighbors’ attorneys on the ground the attorneys had conspired with their clients, the neighbor-defendants, to interfere with the court-approved remediation plan and to disburse the funds from the trust account so as to avoid remediating the contaminated debris on plaintiffs’ property. The trial court allowed the amendment.

The attorney-defendants and the neighbor-defendants appeal from the trial court’s order. We conclude the trial court did not abuse its discretion in allowing the amendment because the amended complaint alleges that attorney-defendants violated two independent legal duties owed to plaintiffs: (1) a duty not to engage in affirmative misconduct that would interfere with the remediation of the contaminated debris, and (2) a duty to disburse the funds from their trust account in a fair manner. Further, the claims against the attorney-defendants are not barred by the litigation privilege because, as alleged, the attorneys’ communications and affirmative misconduct interfered with the abatement of a nuisance, involved communications with nonparticipants in the action, and did not attempt to achieve the objects of any litigation. (See Civ. Code, § 47, subd. (b); undesignated section references are to that code.) Rather, the attorney-defendants actively sought to thwart the remediation effort, causing a continuing nuisance on plaintiffs’ property. Finally, the assertion of the conspiracy claims does not violate the attorney-client privilege given that the theory of liability as to the attorney-defendants is based on nonconfidential communications with third parties and nonconfidential conduct involving third parties.