Modification: Long Beach Unified School Dist. v. Margaret Williams, LLC

LONG BEACH UNIFIED SCHOOL DISTRICT,

Cross-complainant and Appellant,

v.

MARGARET WILLIAMS, LLC,

Cross-defendant and Respondent.

No. B290069

(Los Angeles County

Super. Ct. No. NC060708)

California Courts of Appeal

Second Appellate District

Division Four

Filed December 31, 2019

THE COURT

It is ordered that the opinion filed December 9, 2019, be modified as follows:

On page 20, line 18, the following footnote 7 [requiring renumbering of all subsequent footnotes] is added after the period following the word "protected":

⁷ "Neither C.W. Howe Partners Inc. v. Mooradian (Dec. 19, 2019, B290665) ___Cal.App.5th___ [2019 Cal.App. LEXIS 1277] (C.W. Howe) nor Wong v. Wong (Dec. 13, 2019, A154286) ___Cal.App.5th___ [2019 Cal.App. LEXIS 1252] (Wong), each of which was published after the initial publication of this opinion, calls for a different conclusion. The C.W. Howe court, disagreeing with our analysis of the first ground for our first-step holding, rejected indemnitors' contention that cross-claims seeking defense and indemnity in the indemnitors' litigation arose from that underlying litigation. (See C.W. Howe, supra, at pp. *17-*24.) But the court proceeded to expressly distinguish its opinion from ours on the second ground for our first-step holding, viz., our conclusion that Williams LLC's refusal to defend and indemnify the District -- from which the District's cross-claims concededly arose -- was protected conduct in furtherance of petitioning activity in connection with an issue of public interest. (See id. at pp. *24, *25 [noting indemnitors did not and could not "assert that their refusal to honor the [indemnitees'] indemnity demand similarly implicate[d] an issue of public interest"].)

Wong is distinguishable for the same reason. The indemnitor there could not claim an issue of public interest was at stake in the underlying litigation, in which a corporation that owns and operates a shopping mall sought recovery of allegedly misappropriated loan proceeds from the estate of a former shareholder. (See Wong, supra, [2019 Cal.App. LEXIS 1252], at pp. *2-*5.) In any event, the Wong court did not address whether the indemnitor's refusal to indemnify the indemnitee was protected conduct in furtherance of petitioning activity in connection with an issue of public interest. (See id. at pp. *7-*15.) Thus, Wong is not authority on that issue. (See California Building Industry Assn. v. State Water Resources Control Bd. (2018) 4 Cal.5th 1032, 1043 ["It is axiomatic that cases are not authority for propositions that are not considered"].)"

The petition for rehearing is denied. The modification does not change the judgment.

MANELLA, P. J.

COLLINS, J.

CURREY, J.