Fulkerson v. Albert & Mackenzie LLP CA3

Filed 2/28/23 Fulkerson v. Albert & Mackenzie LLP CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento) ----

HEATH V. FULKERSON,

Plaintiff and Respondent, C095168

v. (Super. Ct. No. 34-2021- 00303464-CU-FR-GDS) ALBERT & MACKENZIE LLP et al.,

Defendants and Appellants.

Heath Fulkerson (Fulkerson), At Home Electric, and Heath V. Fulkerson LLC sued Albert & Mackenzie LLP, a law firm, Jeremiah Brasher, an attorney, and Hartford Accident & Indemnity Company (Hartford), a workers’ compensation insurer, for intentional infliction of emotional distress, slander, and fraud. The complaint did not specify the conduct or statements by defendants upon which plaintiffs’ claims for relief were based.

1

Defendants filed special motions to strike the complaint pursuant to Code of Civil Procedure section 425.16,1 asserting that plaintiffs’ claims arose from counsel’s conduct in representing Hartford before the Workers’ Compensation Appeals Board and that plaintiffs could not establish a prima facie case supporting their claims. The trial court denied the motions, concluding the complaint was too vague to support a finding that it arose from protected activity. Hartford and Albert & Mackenzie LLP now contend the trial court should have considered the declarations defendants submitted with their motions, which they claim allowed them to meet their threshold burden of showing that plaintiffs’ claims arose from conduct protected under section 425.16, subdivision (e). Finding no error, we will affirm the trial court’s order. BACKGROUND The complaint alleged that as a result of defendants’ actions, Fulkerson was forced to represent himself in Workers’ Compensation Appeals Board case No. ADJ13747725 (case 7725) and incur costs. Brasher and Albert & Mackenzie LLP filed a special motion to strike the complaint pursuant to section 425.16, arguing that the claims arose from their representation of Hartford in case 7725, their conduct was protected activity under section 425.16, subdivision (e)(2), and plaintiffs could not establish a prima facie case. Brasher’s declaration, submitted in support of the motion, asserted the following: case 7725 involved an alleged injury that occurred on August 22, 2020. Albert & Mackenzie LLP was the attorney of record for Hartford in that case. Brasher investigated Fulkerson’s claim, communicated with Fulkerson regarding possible settlement, developed Hartford’s defenses, conducted discovery, and filed documents in the trial court. Fulkerson filed another application for adjudication of claim with the Workers’