Yang v. Fields

Filed 2/28/08 Yang v. Fields CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from judgments of the Superior Court of Los Angeles County. William F. Highberger, Judge. Affirmed.

Jen-Kang Yang, in pro. per., for Plaintiff and Appellant.

Hinshaw & Culbertson and Filomena E. Meyer for Defendant and Respondent Larry H. Fields.

Lindahl Beck, Kelley K. Beck and V. Rene Daley for Defendant and Respondent Zurich American Insurance Company.

Plaintiff and appellant Jen-Kang Yang (Yang) appeals from separate judgments entered in favor of defendants and respondents Larry H. Fields (Fields) and Zurich American Insurance Company (Zurich), respectively, after the trial court granted Fieldss special motion to strike, pursuant to Code of Civil Procedure section 425.16[1](anti-SLAPP motion), to Yangs second amended complaint and sustained, without leave to amend, Zurichs demurrer to the second amended complaint. We affirm the judgments.

BACKGROUND

A. Underlying Workers Compensation Claim

Yang was employed by Union Bank of California (Union Bank) when he filed a claim for workers compensation benefits in November 2001 (the workers compensation proceeding). Zurich was Union Banks workers compensation insurer at the time Yang filed his claim for benefits. Fields was the attorney retained to represent Zurich and Union Bank in connection with the workers compensation proceeding.

Yang sued Union Bank in a separate civil action alleging invasion of privacy, violation of the covenant of good faith and fair dealing, intentional infliction of emotional distress, unlawful discrimination practices, negligent supervision, disability discrimination, and national origin/age discrimination (the civil action). Fields deposed Yang during the course of the workers compensation proceeding, and at the request of Union Banks counsel in the civil action, sent Union Bank and its counsel a copy of Yangs deposition transcript. Fields, in turn, requested and received copies of Yangs deposition transcripts in the civil action.

Zurich appointed Dr. Sherry Mendelson to examine Yang on January 8, 2002, in connection with the workers compensation proceeding. Dr. Mendelson thereafter issued a report stating that Yang had mild symptomatology of a depressive disorder and an anxiety disorder, but that he had no industrially based psychiatric injury. Zurich subsequently denied liability on Yangs workers compensation claim. Yang requested disability leave in April 2002 and was discharged from his employment in June 2002.

B. The Instant Action

Yang filed the original complaint in this action on September 9, 2005, in the San Bernardino County Superior Court. Zurich demurred to the original complaint, and Yang responded by filing a first amended complaint. Zurich demurred to the first amended complaint on the ground that the Workers Compensation Appeals Board had exclusive jurisdiction over all of Yangs claims.

Yang served Fields with the first amended complaint on October 28, 2005. Fields moved to transfer venue to Los Angeles County. On November 30, 2005, the trial court sustained Zurichs demurrer, granted Yang 30 days leave to amend, and transferred the action to the Los Angeles County Superior Court. Yang thereafter filed a motion for sanctions against Fieldss counsel, on the ground that counsel did not advise Yang that an unsuccessful opposition to a motion to transfer venue could result in liability for fees and costs incurred in litigating the motion. The trial court denied Yangs motion for sanctions on May 31, 2006.

Yang served Fields and Zurich with a second amended complaint, the operative pleading in this appeal, on April 21, 2006. The second amended complaint alleges causes of action against Zurich for dishonesty of purpose, invasion of privacy, intentional and negligent infliction of mental distress, disability/age discrimination, and violation of section 2025.430. Against Fields, the second amended complaint alleges causes of action for invasion of privacy and intentional and negligent infliction of mental distress. Zurich filed and served a demurrer to the second amended complaint on May 26, 2006. Fields filed a demurrer on May 22, 2006, and an anti-SLAPP motion on June 7, 2006.

On May 31, 2006, Yang moved for entry of default against Zurich on the original complaint. The superior court clerk rejected Yangs request for entry of default on the ground that a second amended complaint had been filed on April 27, 2006, and default accordingly could not be entered on the original complaint. On June 7, 2006, Yang moved for entry of default against Fields, and the superior court clerk again rejected the request.

Fieldss demurrer and anti-SLAPP motion were heard on July 24, 2006. The trial court took the matters under submission and issued its decision on August 3, 2006, granting the anti-SLAPP motion in its entirety, and rendering the demurrer moot. On September 20, 2006, Fields filed a motion pursuant to sections 1032, 1033.5 and 425.16, subdivision (c) for fees and costs incurred in litigating the motion to transfer venue and as the prevailing party on the anti-SLAPP motion. Yang opposed that motion and again requested sanctions against Fields and Fieldss counsel for failing to advise him about the consequences of unsuccessfully opposing a motion to transfer venue. Following a hearing on December 5, 2006, the trial court granted Fieldss motion and awarded him $25,789.50 in attorney fees and costs. Judgment was entered in Fieldss favor on September 27, 2006.

After a hearing on Zurichs demurrer on August 10, 2006, the trial court ordered supplemental briefing on the issue of whether the Workers Compensation Appeals Board had exclusive jurisdiction over Yangs claims for discrimination. After the parties submitted supplemental briefing on this issue, the trial court heard further argument on September 11, 2006. At the conclusion of the hearing, the trial court sustained Zurichs demurrer without leave to amend. Judgment was entered in Zurichs favor on October 11, 2006. This appeal followed.

DISCUSSION

I. Standard of Review

On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. [Citations.] The court does not, however, assume the truth of contentions, deductions or conclusions of law. [Citation.] The judgment must be affirmed if any one of the several grounds of demurrer is well taken. [Citations.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.] (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) The legal sufficiency of the complaint is reviewed de novo. (Montclair Parkowners Assn. v. City of Montclair (1999) 76 Cal.App.4th 784, 790.) A trial courts order sustaining a demurrer without leave to amend is reviewed for abuse of discretion. (Schifando v. City of Los Angeles(2003) 31 Cal.4th 1074, 1081.)

A trial courts order granting a special motion to strike under section 425.16 is reviewed de novo. (Computer Xpress, Inc. v. Jackson(2001) 93 Cal.App.4th 993, 999.)

II. Anti-SLAPP Motion

Section 425.16 provides in relevant part: A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim. ( 425.16, subd. (b)(1).) Determining whether the statute bars a given cause of action requires a two-step analysis. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) First, the court must decide whether the party moving to strike a cause of action has made a threshold showing that the cause of action aris[es] from any act . . . in furtherance of the [moving partys] right of petition or free speech. ( 425.16, subd. (b)(1); Navellier, supra, at p. 88.) A cause of action arising from [a] defendants litigation activity may appropriately be the subject of a section 425.16 motion to strike. [Citations.] Any act includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation. [Citations.] (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)

If the court finds that a defendant has made the requisite threshold showing, the burden then shifts to the plaintiff to demonstrate a probability that the plaintiff will prevail on the claim. ( 425.16, subd. (b)(1); Navellier, supra, 29 Cal.4th at p. 88.) In order to demonstrate a probability of prevailing, a party opposing a special motion to strike under section 425.16 must demonstrate that the complaint is both legally sufficient or supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citation.] (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 746, fn. omitted.)

A. Arising from Protected Activity

In deciding whether a defendant has satisfied the initial arising from requirement under section 425.16, a court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. ( 425.16, subd. (b).) (Navellier, supra, 29 Cal.4th at p. 89.) Examination of the pleadings in this case[2]shows that each of the causes of action in the second amended complaint is premised upon Fieldss representation of Zurich and Union Bank in the workers compensation proceeding, or communications made in connection with that proceeding, both protected activities under section 425.16.

Yangs cause of action against Fields for invasion of privacy is based on Fieldss sending, at the request of Union Banks counsel in the civil action, a transcript of Yangs deposition taken in the workers compensation proceeding. Fields, in turn, requested and received a copy of Yangs deposition transcript in the civil action. This exchange of deposition transcripts took place as part of Fieldss investigation of the workers compensation claim, in furtherance of his clients right of petition in connection with that claim. (See Gallanis-Politis v. Medina(2007) 152 Cal.App.4th 600, 610-612.)

Yangs causes of action for intentional and negligent infliction of emotional distress are based on Fieldss rejection, on behalf of Zurich and Union Bank, of Yangs offer to settle the workers compensation proceeding by reinstating his employment. Statements made in the context of negotiating a settlement are protected under section 425.16. (Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 842.)

Yangs claims against Fields for intentional and negligent infliction of emotional distress are also based on Fieldss conduct during discovery -- repeatedly asking [the] same questions in the depositions, [scheduling and canceling] depositions . . . at will, with short notice, and without any substantial justification, and scheduling long hours [of] depositions that caused Yang to experience terrible headache[s] and mental distress with uncertainty and anxiety. The alleged actions all concern Fieldss conduct in noticing and taking Yangs deposition, acts that are in furtherance of his clients right of petition and thus protected under section 425.16. (See Gallanis-Politis v. Medina, supra, 152 Cal.App.4th at pp. 610-612.)

The trial court thus correctly determined that Fields met the threshold requirement of demonstrating that the causes of action asserted against him arise from activity protected under section 425.16.

B. No Reasonable Probability of Prevailing

Because the trial court correctly determined that Yangs claims against Fields arise from conduct that is protected under section 425.16, we must now determine whether Yang met his burden of demonstrat[ing] a probability of prevailing on the claim[s]. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) To satisfy this burden, the plaintiff must state[ ] and substantiate[ ] a legally sufficient claim. [Citation.] Put another way, the plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. [Citation.] (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 746, fn. omitted.) Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. [Citation.] (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)

Yang has failed to make the prima facie showing necessary to establish a probability of prevailing on his causes of action against Fields for invasion of privacy and intentional and negligent infliction of emotional distress.

1. Invasion of Privacy

Yangs cause of action for invasion of privacy appears to be either a statutory claim for violation of article I, section 1 of the California Constitution, or a common law claim for public disclosure of private facts. We discuss below the elements of each.

A plaintiff asserting a claim for violation of privacy rights protected under the California Constitution must establish three essential elements: (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct on the part of the defendant constituting a serious invasion of privacy. (Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 39-40.) The elements of the tort of public disclosure of private facts are (1) public disclosure, (2) of a private fact, (3) which would be offensive and objectionable to a reasonable person. (Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 214.)

Yang has failed to state a legally sufficient claim for violation of his constitutional right of privacy because he has failed to establish a legally protected privacy interest in his deposition transcript. Deposition transcripts are available to the public under section 2025.570, which requires a deposition officer to provide a copy of a transcript to any person upon request and payment of reasonable charges. The statute provides in part: [U]nless the court issues an order to the contrary, a copy of the transcript of the deposition testimony made by, or at the direction of, any party, or an audio or video recording of the deposition testimony, if still in the possession of the deposition officer, shall be made available by the deposition officer to any person requesting a copy, on payment of a reasonable charge set by the deposition officer. ( 2025.570, subd. (a).) Yang does not allege that he sought a protective order to prevent disclosure of his deposition transcript, nor has he presented any reason to prevent such disclosure.

Yang has also failed to state a legally sufficient claim for public disclosure of private facts because he has failed to establish the element of public disclosure. [C]ommon law invasion of privacy by public disclosure of private facts requires that the actionable disclosure be widely published and not confined to a few persons or limited circumstances. [Citation.] (Hill v. National Collegiate Athletic Assn., supra, 7 Cal.4th at p. 27; Rest.2d Torts, 652D, com. a [it is not an invasion of the right of privacy . . . to communicate a fact concerning the plaintiffs private life to a single person or even to a small group of persons].) The alleged disclosure of Yangs deposition transcript to Union Bank (Fieldss own client in the workers compensation proceeding), and to Union Banks counsel in the related civil action does not constitute public disclosure as an element of this tort.

2. Intentional Negligent Infliction of Emotional Distress

The tort of intentional infliction of emotional distress is comprised of three elements: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff suffered severe or extreme emotional distress; and (3) the plaintiffs injuries actually and proximately caused by the defendants outrageous conduct. [Citation.] (Cochran v. Cochran (1998) 65 Cal.App.4th 488, 494.) In order to meet the first element, the alleged conduct . . . must be so extreme as to exceed all bounds of that usually tolerated in a civilized community. [Citation.] (Ibid.) [T]he tort does not extend to mere insults, indignities, threats, annoyances, petty oppressions and other trivialities . . . . [Citations.] (Id. at p. 496, quoting Rest.2d Torts, 46, com. d, p. 73.)

Yang has alleged no conduct by Fields that meets this standard. Yangs causes of action for intentional and negligent infliction of mental distress are premised on Fieldss noticing and then subsequently rescheduling Yangs deposition several times, asking repetitive questions at the deposition sessions, and rejecting a settlement offer that involved reinstating Yangs employment in lieu of damages. None of these actions constitute extreme and outrageous conduct exceeding the bounds of reason. (See Cochran v. Cochran, supra, 65 Cal.App.4th at p. 494.)

3. Negligent Infliction of Emotional Distress

Negligent infliction of emotional distress is not an independent tort; it is the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply. [Citation.] (Ess v. Eskaton Properties, Inc. (2002) 97 Cal.App.4th 120, 126.) [T]here is no duty to avoid negligently causing emotional distress to another . . . . (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) Thus, unless the defendant has assumed a duty to plaintiff in which the emotional condition of the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendants breach of some other legal duty . . . . (Id. at p. 985.) Yang has not alleged any breach of duty owed to him by Fields, nor does such a duty exist between an attorney and an adverse party, as is the case here. (See, e.g., Schick v. Lerner (1987) 193 Cal.App.3d 1321, 1330; Omega Video Inc. v. Superior Court (1983) 146 Cal.App.3d 470, 480-481.) Yang has therefore failed to establish a probability of prevailing on his cause of action for negligent infliction of emotional distress.

C.Timeliness of Motion

Yang contends that Fieldss anti-SLAPP motion was untimely filed. Fieldss anti-SLAPP motion was timely filed on June 7, 2006, within 60 days after service of the second amended complaint. ( 425.16, subd. (f); Yu v. Signet Bank/Virginia(2002) 103 Cal.App.4th 298.)

III. Demurrer

The trial court sustained Zurichs demurrer to Yangs causes of action for dishonesty of purpose, invasion of privacy, intentional and negligent infliction of emotional distress, and violation of section 2025.430, on the ground that the court lacked jurisdiction to adjudicate these claims because the Workers Compensation Appeals Board had exclusive jurisdiction over them. The trial court sustained the demurrer to Yangs claims for disability and age discrimination on the grounds that the claims were subject to the exclusive jurisdiction of the Workers Compensation Appeals Board; Yang failed to state a claim for discrimination under title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.) (Title VII); and Yang failed to state a claim for discrimination based on the Americans with Disabilities Act (42 U.S.C.  12111 et seq.) (ADA). We find no error in the trial courts rulings.

A. Exclusive Jurisdiction of Workers Compensation Appeals Board

A workers compensation appeals board proceeding is the exclusive remedy for an employee seeking compensation from the employer or the employers workers compensation insurer for injuries sustained in the course of employment.[3] (Soto v. Royal Globe Ins. Corp. (1986) 184 Cal.App.3d 420, 427.) In Unruh v. Truck Insurance Exchange (1973) 7 Cal.3d 616, the California Supreme Court recognized an exception to the workers compensation appeals boards exclusive jurisdiction and concluded that an insurer may be subject to civil action for its intentionally deceitful course of conduct in the course of investigating a claim. That exception has been applied narrowly, however, to cases in which the employee alleges not only that the insurers conduct was intentional but specifies objectively identifiable and independently tortious conduct which is distinguishable from the normal investigation expected of a workers compensation carrier. [Citations.] (Stoddard v. Western Employers Ins. Co. (1988) 200 Cal.App.3d 165, 171 (Stoddard).) Thus, courts routinely have held allegations of an insurers acts of delaying or refusing to pay benefits, even if intentional, are not sufficiently outrageous nor independently tortious to escape the exclusive remedy bar. [Citations.] (Ibid.; see, e.g., Cervantes v. Great American Ins. Co. (1983) 140 Cal.App.3d 763, 771, 774 [claims for bad faith and intentional infliction of emotional distress]; Soto v. Royal Globe Ins. Corp., supra, 184 Cal.App.3d at pp. 426-429 [claims for bad faith and intentional and negligent infliction of emotional distress].)

Yangs causes of action against Zurich for dishonesty of purpose, intentional and negligent infliction of emotional distress, and violation of section 2025.430 are premised on Zurichs refusal to pay benefits or its investigation of Yangs claim and are thus subject to the exclusive jurisdiction of the workers compensation appeals board. (Lab. Code, 3602, 3852; Soto v. Royal Globe Ins. Corp., supra, 184 Cal.App.3d at p. 427.)

1. Dishonesty of Purpose

In his cause of action for dishonesty of purpose, Yang seeks damages for emotional pain and suffering. He alleges that Zurich intentionally and willfully kept scheduling, taking, and canceling depositions that caused Plaintiff [to be] deeply depressed. He further alleges that Zurich engaged in extreme and outrageous misconduct by using the discovery and settlement as tools to force Plaintiff [to] resign from [Union Bank] because Zurich did not want to keep insuring Plaintiff who has been disabled.

None of these allegations specify conduct that is sufficiently outrageous nor independently tortious to bring Yangs claims outside the exclusive jurisdiction of the workers compensation appeals board. (Stoddard, supra, 200 Cal.App.3d at p. 171.)

2. Intentional and Negligent Infliction of Emotional Distress

Yangs causes of action for intentional and negligent infliction of emotional distress are based on Zurichs rejection of a settlement offer based on reinstatement of Yangs employment; its insistence that Yang either resign or waive his right to sue as a condition to settlement; its scheduling, cancelling, and rescheduling of Yangs deposition; its conducting lengthy deposition sessions that caused Yang to suffer a terrible headache and intense mental anxiety; and failure to provide notice of a mandatory settlement conference. None of the alleged conduct is independently tortious or distinguishable from the normal investigation expected of a workers compensation carrier. (Stoddard, supra, 200 Cal.App.3d at p. 171.) Yangs claims for intentional and negligent infliction of emotional distress accordingly do not fall outside the exclusive jurisdiction of the Workers Compensation Appeals Board.

3. Alleged Discovery Abuses

Yangs cause of action for violation of section 2025.430 is premised on the allegation that Zurich scheduled eight depositions and then cancelled five of them with short notice and without any substantial justification. Yang further alleges that the Workers Compensation Appeals Board lacks jurisdiction to sanction Zurich for the alleged discovery abuses.

Yang has not alleged any conduct by Zurich that falls outside the scope of normal investigation by a workers compensation carrier. In addition, there is no merit to his claim that the Workers Compensation Appeals Board lacks jurisdiction to sanction a party for discovery abuses. Labor Code section 5813, subdivision (a) authorizes the Workers Compensation Appeals Board to impose such sanctions, when warranted.[4]

B. Invasion of Privacy

The second amended complaint fails to allege facts sufficient to state a cause of action for violation of article I, section 1 of the California Constitution, or for public disclosure of private facts. Yangs invasion of privacy claim is premised on Fieldss providing Union Banks attorney with a copy of Yangs deposition transcript, after the banks attorney requested a copy. As discussed, Yang established no legally protected privacy interest in his deposition transcript, which is available to the public under section 2025.570. He thus failed to establish an essential element to his claim for violation of his constitutional right to privacy. Also as discussed, Yang has failed to allege facts sufficient to state a claim for public disclosure of private facts because he alleges no public disclosure, a necessary element of that tort. The trial court accordingly did not err by sustaining Zurichs demurrer to the cause of action for invasion of privacy.

C. Discrimination Claims

Both Title VII and the ADA require a plaintiff to file a timely discrimination charge with the Equal Employment Opportunity Commission (EEOC) and obtain a right-to-sue letter before filing suit. (42 U.S.C. 12117(a); Zipes v. Trans World Airlines, Inc. (1982) 455 U.S. 385, 393; Baker v. Childrens Hospital Medical Center (1989) 209 Cal.App.3d 1057, 1063.) Yangs second amended complaint does not allege that he filed a complaint with the EEOC or that a right-to-sue letter had been issued. The trial court therefore properly sustained Zurichs demurrer to the causes of action for discrimination under Title VII and the ADA based on Yangs failure to exhaust his administrative remedies.

IV. Default and Sanctions

Yang contends the trial court erred by failing to enter default against Fields and Zurich for failure to file timely responses to the second amended complaint. Yang served Fields and Zurich with the second amended complaint on April 21, 2006, nearly a week before filing it with the court on April 27, 2006.

Section 430.40, subdivision (a), accords a defendant against whom a complaint has been filed 30 days after service of the complaint in which to file a demurrer. When service of an amended complaint precedes its filing, however, as was the case here, the date of filing governs the period when default may be taken. (Baker v. Anderson (1981) 119 Cal.App.3d 1000, 1002.) Fields and Zurich timely filed their demurrers on May 22, 2006, and May 26, 2006, respectively, within 30 days after Yang filed the second amended complaint. The trial court accordingly did not err by rejecting Yangs request for entry of default.

Yang also challenges the trial courts denial of his motion for sanctions against Fieldss counsel on the grounds that counsel did not advise Yang that an unsuccessful motion to transfer venue included the possibility of monetary sanctions; that counsel did not include in her declaration in support of the motion to transfer venue that Yang had refused to stipulate to a transfer of venue because of his belief that the action was an injury related case or that Yangs spouse had asked counsel to contact her if counsel had any questions; and that counsel did not withdraw the motion despite Yangs willingness to transfer the action to Pomona. The record discloses no abuse of discretion by the trial court in its denial of the request for sanctions.

DISPOSITION

The judgments are affirmed. Fields and Zurich are awarded their costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_______________________, J.

CHAVEZ

We concur:

__________________________, Acting P. J.

DOI TODD

__________________________, J.

ASHMANN-GERST

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[1] All further statutory references are to the Code of Civil Procedure, unless otherwise stated.

[2] The parties submitted no supporting or opposing affidavits in connection with the anti-SLAPP motion.

[3] Labor Code section 3602 provides in part: Where the conditions of compensation set forth in Section 3600 concur, the right to recover such compensation is  . . . the sole and exclusive remedy of the employee or his or her dependents against the employer. Labor Code section 3852 allows actions for employment injury against persons other than the employer, but defines the term employer to include the workers compensation insurance carrier.

[4] Labor Code section 5813, subdivision (a) states: The workers compensation referee or appeals board may order a party, the partys attorney, or both, to pay any reasonable expense, including attorneys fees and costs, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay. In addition, a workers compensation referee or the appeals board, in its sole discretion, may order additional sanctions not to exceed two thousand five hundred dollars ($2,500) to be transmitted to the General Fund.