Heather Isringhausen Gvillo Aug. 22, 2014, 9:33am

VISALIA, Calif. (Legal Newsline) – A California car dealership has filed a lawsuit alleging malicious prosecution against the Keller, Fishback & Jackson law firm for refusing to release the dealership from an asbestos wrongful death case despite allegedly having no evidence proving causation or liability.

Plaintiff Tulare Sag, Inc., a California corporation doing business as Lampe Dodge-Chrysler-Jeep, filed the lawsuit in the Superior Court of the State of California for the County of Tulare against the Keller, Fishback & Jackson law firm, Stephen M. Fishback, Diran H. Tashjian, J. Bruce Jackson, and Does 1 through 25.

Michael J. Lampe of the Law Offices of Michael J. Lampe represents the plaintiff in this case and said the defendants are preying on the public through their “offensive” law practices.

“They make a living victimizing the public by way of being shakedown artists,” Lampe said.

The complaint arises out of a 2007 asbestos wrongful death case in which the defendants served as counsel for asbestos claimant Johann Hardeman, who filed the underlying suit against 43 defendants for the death of her husband, Leonard Hardemant, as a result of alleged asbestos exposure.

When the case was transferred to the Los Angeles County Superior Court, Tyne Harold Hardeman and Michael Todd Hardeman were named additional plaintiffs.

Lampe Dodge was named a defendant in the underlying asbestos case, with 15 separate causes of action asserted against it.

During trial in August 2011, the Keller Fishback law firm admitted its client had no evidence to support the original theory of liability against Lampe Dodge alleged in the asbestos complaint, an amended complaint filed March 21 says.

Instead, Lampe said Keller Fishback admitted it didn’t have any evidence in 13 of the 15 claims asserted in the complaint and wanted to allege successor liability rather than its prior allegations.

As a result, the trial court dismissed the case, calling it a “little cat and mouse game.” The judge noted that the parties had been in the case for more than three years and failed to address its successor liability theory until trial. She explained that all the plaintiffs had to do was file an amendment to the complaint specifying which subsection of the Ray v Alad theories they planned on using to try the case.

However, Keller Fishback waited until the first day of trial to announce that of the five theories of liability, it was only going to proceed on implied assumption.

“As the trial judge, I am just appalled that somebody could – and this motion the plaintiff filed had no one single case cited. I have been for the last hour and a half trying to play catch-up, trying to figure out what theory the plaintiff is trying to assert, is there legal authority, and the defendant was the one that gave me a case in support that actually articulated this fifth theory, not even the plaintiff,” the court stated at trial.

Calling the plaintiffs’ announcement “a motion with no authority,” the trial court said Keller Fishback failed to file an amendment in the last three years and four months specifying which theories it planned to address at trial.

“There’s no diligence, no excuse for this delay,” the court held.

“They were trying to do everything they could to salvage the situation,” Lampe said.

Marshall Whitney of the McCormick Barstow law firm represents the defendants in this case. He said the judge refused to accept the successor liability allegation because it wasn’t addressed in the complaint.

“I am mystified how this judge concluded it wasn’t in the case simply because the plaintiff didn’t say it,” Whitney said.

Regardless, Lampe said successor liability allegations don’t stand because Lampe Dodge didn’t even exist until 2005, long after the decedent is believed to have purchased automobile parts.

In 2005, Lampe Dodge purchased the assets, and only the assets, of Don Groppetti and 4-Gropps, Inc., which purchased the assets, but did not assume the liabilities, of the former dealer, Brian Ross Chrysler-Dodge in 2000.

Furthermore, the trial court said these actions are especially unacceptable in asbestos cases, where it is not uncommon for juries to award multi-million dollar verdicts.

“This is a little cat and mouse game that’s been going on here, and the plaintiff has been in charge of its pleadings since day one, and I think because of the prejudice in terms of monetary damages, not knowing what specific theory the plaintiffs were asserting until this morning – not even yesterday, not even yesterday when we spoke about this did the plaintiff preview which specific theory it was going to try this morning, no trial brief, not a single case cited in the motion to amend … This is denied. Plaintiff’s action is dismissed. Thank you,” the court ruled.

In Lampe Dodge’s malpractice lawsuit, it argues the defendants did not “honestly and reasonably” believe there were grounds for the actions alleged in the asbestos lawsuit.

“The defendants acted maliciously in prosecuting the asbestos case against Lampe, in that they held the specter of a multi-million dollar damage award over Lampe in a case where Lampe had no actual liability to the Hardeman plaintiffs, repeatedly demonstrated that it had no liability to plaintiffs, and would not accede to the defendants’ demands to settle the Hardeman action,” the amended complaint states.

Lampe Dodge claims it incurred attorneys’ fees and costs amounting to more than $150,000 as a result of the asbestos lawsuit.

The plaintiffs in this case also allege Keller Fishback failed to notify the Hardemans of several settlement offers by Lampe in the asbestos case.

Both Michael Todd Hardeman and Tyne Hardeman stated that they were unaware of any settlement offers while the case was being litigated.

Lampe Dodge argues that had the Hardemans known about the settlement offers, they likely would have accepted – meaning Lampe Dodge would have been released as a defendant in the asbestos case much sooner and wouldn’t have incurred as many costs.

Additionally, the plaintiff alleges that Keller Fishback failed to notify the Hardemans that the asbestos case had been set for trial and that their presence was required.

Retired U.S. District Judge Oliver Wanger provided a declaration in February 2012, explaining that the Hardemans didn’t know of the trial until a phone conference with Steve Fishback after Tyne Hardeman was served with a copy of the malicious prosecution lawsuit in September 2011. He also didn’t even know the court dismissed the case with prejudice, entering a judgment against the Hardemans amounting to $5,229.

The Hardemans were originally named in this case after Lampe Dodge sent several letters to Keller Fishback suggesting a possible lawsuit if the dealership wasn’t dismissed from the case.

“In willful and conscious disregard for the rights of Lampe, their own clients, and the public in general, the defendants have created a business model that benefits them at the expense of their own clients and the public at large, including Lampe,” the amended complaint states.

Ultimately, Lampe Dodge believes the defendants intended to put “pressure” to the company to waive any future claims against the defendants in this case in exchange for dismissal from the asbestos case.

Lampe said the plaintiff in this case refused, explaining that the acceptance of a dismissal with waiver of costs is still considered a settlement.

“As a result of the improper strategy employed by the Keller Fishback defendants, Lampe is informed and believes that the defendants made an intentional decision not to have the Hardemans present at trial, despite the Hardemans’ legal obligation to be present,” Lampe Dodge states.

Lampe Dodge also raises issue with apportionment of the money awarded to the Hardemans through settlements.

Lampe said the defendants settled claims by grouping the Hardemans' case with unrelated claims alleged by other Keller Fishback clients and then “distributing the proceeds in a manner solely determined by Keller Fishback.”

Lampe Dodge alleged the Hardemans were unaware that their claims had been bundled and settled, allowing the law firm to assign more settlement proceeds to other clients.

For example, Lampe Dodge’s anti-SLAPP brief, filed in October 2012, alleges one instance in which Keller Fishback negotiated a group settlement with a defendant for $275,000, but only reported a settlement in the amount of $50,000 to the Hardemans.

Lampe Dodge stated that the Hardemans recovered a total of $165,750 from all 43 defendants in the asbestos suit.

“If there’s 43 defendants and the best you can get in a wrongful death case is $165,750, that tells you right off the bat it’s a pretty crappy case. It’s a nuisance case,” Lampe said.

Of that amount, at least $96,700 was paid to the Keller Fishback law firm for costs and another 40 percent was set aside for legal fees, meaning the Hardemans only received roughly $22,657 of their compensation.

“In my view,” Lampe said, “it rises to the level of probably criminal activity.”

“This business model, and the conduct engaged in by the Keller Fishback defendants, especially as it relates to Lampe Dodge, amounts to nothing short of a shake down, and it despicable conduct that would be looked down on and despised by reasonable people, and justify an award of punitive damages,” the amended complaint states.

Lampe said the Hardemans sued the Keller Fishback defendants as a result of their actions in the asbestos case.

From Legal Newsline: Reach Heather Isringhausen Gvillo at asbestos@legalnewsline.com

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