Harris v. Verizon Communications ( 2006 )

Opinion

VOGEL, J.

The unclaimed property law (the UPL, Code Civ. Proc., §§ 1500-1582) protects unknown property owners by reuniting them with their property and giving the state, rather than the holders of the unclaimed property, the benefit of its use until it is claimed.¹ {Harris v. Westly (2004) 116 Cal.App.4th 214, 219 [10 Cal.Rptr.3d 343].) To these ends, stock held by a corporation escheats to the State of California if the shareholder (owner) has not communicated with the corporation for more than three years and if the owner’s whereabouts are unknown, at which point the corporation must deliver duplicate stock certificates to the State Controller. (§ 1532, subd. (b); Harris v. Westly, supra, 116 Cal.App.4th at p. 219.)² Failure to comply with the escheat requirements subjects a corporation to fines and other penalties. (§§ 1576, 1577.)

Dividends accrued on escheated stock are credited to the owner’s account until the shares are sold (securities listed on an established stock exchange must be sold within two years after receipt by the Controller). (§§ 1562, 1563, subd. (b).) After the sale, the Controller holds the proceeds and presale dividends for the benefit of the owner, who may at any time submit a claim for the full amount due (there is no statute of limitations). (§§ 1501.5, subd. (a), 1540, subd. (b), 1564.) The claim must be paid within 180 days and the claimant, if dissatisfied about the amount, may sue the Controller to resolve that dispute (§ 1541)—but the Controller is in all other respects immune from suit (§ 1566, subd. (b); Fong v. Westly (2004) 117 Cal.App.4th 841, 851-853 [12 Cal.Rptr.3d 76]). For its part, a corporation escheating stock is immune from an owner’s suit for recovery of the stock, for interest, for damages stemming from the delivery of the stock to the Controller, and for any similar type of liability. (§§ 1532, subd. (b), 1321, 1560.)

In Harris v. Westly, supra, 116 Cal.App.4th 214, Division Eight of our court held that the Controller’s immunity is absolute. In this case involving the same plaintiffs and the same stock, we reach the same result with regard to the corporation’s immunity.

FACTS

Gene Harris worked for GTE Corporation during the 1970’s and 1980’s, during which time GTE promised to (and did) give him shares in the corporation as a “fringe benefit” but (he claims) GTE did not give him stock certificates or any indicia of ownership.³ In the late 1990’s, Harris discovered that in 1990, without his knowledge, GTE transferred his GTE shares to the Controller, who sold them and held the proceeds on Harris’s behalf. Harris submitted a claim to the Controller, which was paid in 1999. (Harris v. Westly, supra, 116 Cal.App.4th at p. 218.)⁴ Harris nevertheless sued the Controller in September 2001, claiming the Controller was liable for damages resulting from the sale of his GTE stock because the sale had been held without notice to Harris. Harris v. Westly, supra, 116 Cal.App.4th 214, holds that the Controller is immune from suit, and that the notice provisions of the UPL “do not require the Controller to provide notice to apparent owners of escheated stock before the Controller sells the stock.” (Id. at pp. 217, 224 [affirming a judgment in favor of the Controller].)

In October 2001, while his class action against the Controller was still pending, Harris filed this class action against GTE, alleging that it is liable for damages caused by its delivery of his shares to the Controller without notice to Harris.⁵ Harris’s second amended complaint seeks tort damages (for breach of fiduciary duty, negligence, conversion, and constructive fraud), statutory damages (for violations of the Securities Act of 1933 (15 U.S.C. § 77a et seq.), and Business and Professions Code section 17200 et seq.), and an accounting, all based on allegations that GTE “always knew” Harris’s whereabouts, or could have readily found him, and thus had “wrongfully” delivered his stock to the Controller. Implicit in his claims is the notion that, had he received the stock before it escheated, he would have held onto it and ultimately sold it for more money than was obtained by the Controller.⁶

GTE demurred, contending (among other things) that Harris’s claims were barred by the UPL’s immunity provisions. Over Harris’s opposition, the trial court sustained the demurrer without leave to amend, finding that the immunity conferred by the UPL is absolute, notwithstanding an allegation that the escheatment was wrongful. Harris appeals from the subsequently entered judgment of dismissal.

DISCUSSION

Harris contends GTE’s delivery of his shares to the Controller was unauthorized (because GTE did not give Harris the notice he claims was required by the UPL) and that, as a result, GTE is not entitled to the immunity afforded by the UPL. We disagree.

First, the immunity conferred by the UPL is absolute. Upon delivery to the Controller of duplicate stock certificates, the holder “shall be relieved from all liability of every kind to any person ... for any losses or damages resulting to that person by the issuance and delivery to the Controller of the duplicate certificate . . . .” (§ 1532, subd. (b);⁷ cf. Fong v. Westly, supra, 117 Cal.App.4th at pp. 851-853 [evidence of a violation of the UPL’s notice provisions is irrelevant to the issue of the Controller’s immunity]; Harris v. Westly, supra, 116 Cal.App.4th at p. 224 [the immunity conferred upon the Controller by section 1566 is absolute and unaffected by the Controller’s failure to give notice of sale]; Ley v. State of California (2004) 114 Cal.App.4th 1297, 1304 [8 Cal.Rptr.3d 642],)⁸ The fact that GTE allegedly failed to comply with the UPL’s notice requirements thus cannot diminish the absolute immunity conferred by section 1532, subdivision (b).⁹

Second, as GTE observes, Harris’s interpretation—that the immunity is conditional and vanishes if the escheatment was wrongful—would render the immunity meaningless because immunity comes into play when, and only when, the defendant is charged with wrongdoing. (Stecks v. Young (1995) 38 Cal.App.4th 365, 373-374 [45 Cal.Rptr.2d 475]; Olney v. Sacramento County Bar Assn. (1989) 212 Cal.App.3d 807, 812-813 [260 Cal.Rptr. 842] [the only time a defendant faces potential liability and the only time a statutory immunity is called into play is when a plaintiff asserts the defendant erred, and “[w]e cannot adopt an interpretation of the statute which allows the statute to have effect only in those situations where it serves no function”]; Storch v. Silverman (1986) 186 Cal.App.3d 671, 678 [231 Cal.Rptr. 27].)

Third, the Legislature’s adoption of a rule of absolute immunity is consistent with the purpose of the UPL, which is to give the state rather than the holders of unclaimed property the benefit of its use. (Douglas Aircraft Co. v. Cranston (1962) 58 Cal.2d 462, 463 [24 Cal.Rptr. 851, 374 P.2d 819].) Without this protection, holders of unclaimed property concerned about lawsuits such as this class action would likely err on the side of retaining rather than delivering unclaimed property to the Controller, thereby depriving the state of the benefit of its use. The Legislature, faced with a choice between absolute immunity (which promotes delivery of unclaimed property to the Controller but provides only limited redress to the owners of the property) and conditional immunity (which would have discouraged delivery but allowed redress), plainly and unambiguously opted for absolute immunity. (§ 1532, subd. (b); cf. Kaucky v. Southwest Airlines Co. (7th Cir. 1997) 109 F.3d 349, 353 [statutory scheme compelling transfer of funds to government and confining suits to claims for refund protects corporations “from being whipsawed”].)¹⁰

For these reasons, the demurrer was properly sustained without leave to amend.

DISPOSITION

The appeal is dismissed. The parties are to pay their own costs of appeal.* ¹¹

Spencer, P. J., concurred.

1 Undesignated section references are to the Code of Civil Procedure. A “holder” is “any person in possession of property subject to [the UPL] belonging to another, or who is trustee in case of a trust, or is indebted to another on an obligation subject to [the UPL].” (§ 1501, subd. (e).) An “owner” means any person with a legal or equitable interest in property subject to the UPL. (§ 1501, subd. (g).) An “apparent owner” means the person who appears from the holder’s records to be entitled to the property held by the holder. (§ 1501, subd. (a).)

2 Under the UPL, “a corporation ... is required to . . . transfer stock to the Controller when the owner has not claimed a dividend or other sums or corresponded or otherwise indicated an interest in the stock for three years, and the corporation does not know the location of the owner at the end of that time.” (Harris v. Westly, supra, 116 Cal.App.4th at p. 219.)

3 Our references to Harris include the other named plaintiffs (Peggy Lee Dominguez, Annette Schoon, Russ Garcia, and Julie Jackson), and our references to GTE include Verizon Communications, GTE’s successor corporation.

4 Harris alleged in his complaint that he learned about the GTE stock (that he owned it and that it had been delivered to the Controller) in 2000 or 2001, but the Controller’s records establish that Harris’s claim was paid in 1999, which necessarily means Harris knew everything he needed to know at that time. (Harris v. Westly, supra, 116 Cal.App.4th at p. 218, fn. 1.) Our resolution of this appeal on the basis of immunity makes it unnecessary for us to consider GTE’s alternative challenge to the timeliness of Harris’s lawsuit.

5 The case was removed to federal court where there were various presently irrelevant proceedings culminating in a remand to the superior court.

6 As Harris puts it in his opening brief, at the time he discovered he “had been divested of [his] investments, [he] calculated that the shares represented by the original GTE certificates . .. were worth significantly more, and that there had been a merger of GTE into Verizon, which further enhanced the value of the stockholdings.”

7 In its entirety, subdivision (b) of section 1532 provides: “The holder of any interest under subdivision (b) of Section 1516 [corporate stock] shall deliver a duplicate certificate to the Controller or shall register the securities in uncertificated form in the name of the Controller. Upon delivering a duplicate certificate or providing evidence of registration of the securities in uncertificated form to the Controller, the holder, any transfer agent, registrar, or other person acting for or on behalf of the holder in executing or delivering the duplicate certificate or registering the uncertificated securities, shall be relieved from all liability of every kind to any person including, but not limited to, any person acquiring the original certificate or the duplicate of the certificate issued to the Controller for any losses or damages resulting to that person by the issuance and delivery to the Controller of the duplicate certificate or the registration of the uncertificated securities to the Controller. ” (Italics added.)

8 As Division Six of our court explained in a different context, where “the language is unambiguous, ‘we are bound by the words of the statute and must conclude the Legislature meant what it said.’ ... A statutory scheme that specifically precludes civil liability for a defendant’s particular conduct accords such defendant absolute immunity. . . . Where absolute immunity exists, the plaintiff may not sue the immunized defendants by challenging the way they performed the immunized act. . . .” (Ley v. State of California, supra, 114 Cal.App.4th at p. 1303; and see Chester v. State of California (1994) 21 Cal.App.4th 1002, 1005 [26 Cal.Rptr.2d 575] [a statute providing that certain persons “shall not be liable for any act or acts done by them in the performance of their” duties “plainly immunizes [them] for their wrongful acts or omissions” because the statute does not “expressly provide otherwise”]; Krikorian v. Barry (1987) 196 Cal.App.3d 1211, 1215, 1218-1219 [242 Cal.Rptr. 312].)

9 Harris’s claim that GTE failed to comply with the notice requirements of section 1516, subdivision (d), ignores the fact that this notice requirement was not adopted until 1993, about three years after Harris’s stock escheated. (Stats. 1993, ch. 692, § 4, pp. 3991-3992.) In 1990, there was no such notice requirement. (Former § 1516; and see Harris v. Westly, supra, 116 Cal.App.4th at p. 222, fn. 13 [“the pre-July 31, 1990 version of the statute is irrelevant, as it is undisputed that Harris’s stock escheated to the state on November 1, 1990. Section 1531 at that time required the Controller to publish notice within one year of delivery of the escheated stock to the state .... Notice to the apparent owner was not a ‘condition precedent’ to placing the property in the Controller’s custody”].)

10 We summarily reject Harris’s remaining points, beginning with his contention that the concept of “absolute immunity” is inconsistent with and thus subordinate to a corporate holder’s common law fiduciary duties to minority shareholders. Implicit in this claim is Harris’s assumption that the corporation’s delivery to the Controller is unauthorized. It is not—because a delivery compelled by statute cannot constitute a breach of fiduciary duty. Harris’s other contention—that our decision should be influenced by Taylor v. Westly (9th Cir. 2005) 402 F.3d 924 and Suever v. Connell (9th Cir. 2006) 439 F.3d 1142—ignores the fact that Taylor and Suever do not address corporate immunity. These decisions criticize the California Controller for the manner in which the UPL is enforced, no more and no less, and they are not authority for an issue that was not considered. (Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. (1999) 19 Cal.4th 1182, 1195 [81 Cal.Rptr.2d 521, 969 P.2d 613].)

11 After this appeal was set for oral argument, the parties advised us they were in the midst of settlement discussions and asked for a continuance. The continuance was granted, with a notice to the parties that we viewed the issue in this case as one to be resolved by a published opinion—but that we would defer our decision to allow them to conclude their negotiations, after which we would file our opinion, albeit one dismissing the appeal if that was their preference. The parties thereafter settled the case and asked us to dismiss the appeal with prejudice, and that is what we have done.