Duchrow v. Forrest (215 Cal. App. 4th 1359, 2013)

Opinion

MALLANO, P. J.

Plaintiff, an attorney, represented a client, also an attorney, in a prior civil suit against the client’s employer for discrimination, harassment, retaliation, wrongful termination, and other related claims. By motion, plaintiff withdrew from the case at the beginning of trial. The client could not find another attorney to represent her, and the trial court dismissed the suit.

In November 2008, plaintiff filed the present action, alleging that the client had breached the parties’ retainer agreement. The complaint alleged that, under paragraph 5 of the agreement, plaintiff was entitled to a “combined hourly and contingency based rate,” and under paragraph 7, he was entitled to costs. The complaint alleged that plaintiff “ha[d] been damaged in the sum of $44,082.22, plus interest.”

On March 8, 2011, the case was called for trial by jury. On March 9, 10, and 11, 2011, plaintiff presented evidence and then rested. On March 11, he moved to amend the complaint to conform to proof, seeking $312,260 in attorney fees and $16,851.95 in costs, for a total of $329,111.95. The amendment was based on a new theory of liability: Under paragraph 9 of the retainer agreement—which was not mentioned in the complaint—plaintiff was entitled to recover for “all time spent” on the prior case because he had withdrawn for good cause. The client opposed the amendment. The trial court granted the motion to amend. The jury awarded plaintiff $140,056.95.

On appeal, the client contends that the trial court abused its discretion by permitting the amendment. We agree. The amendment was made on the fourth day of a five-day trial without any reason for the delay. If plaintiff had wanted to recover under paragraph 9 of the retainer agreement for all time spent on the case—800.65 hours according to his testimony—at $400 per hour, he could have easily included the appropriate allegations in the original complaint or moved to amend the complaint before trial. The client had not seen a need to be represented by counsel or to retain an expert on attorney fee awards until the complaint was amended on the day before the case was submitted to the jury. By then, it was too late. Nor had the client attempted to determine through discovery whether plaintiff had actually spent 800.65 hours on the case or whether that was a reasonable amount of time. And the delay in making the amendment deprived the client of the ability to research adequately whether paragraph 9 was an unenforceable provision in the contingency fee agreement. We therefore reverse the judgment and remand for a new trial.

I

BACKGROUND

We begin with a description of the prior suit and administrative proceedings, and then discuss the history of the present case.

A. Prior Lawsuit and Administrative Proceedings

Ernestine Forrest, an attorney with California’s Department of Corporations (Department), was suspended by the Department in early 2000 and then discharged during the period of suspension. She appealed the discharge to the State Personnel Board, which issued a decision in December 2002 ordering her reinstatement and awarding her three years of backpay. Forrest returned to work. Meanwhile, the Department filed a petition for a writ of administrative mandate, seeking to set aside the board’s decision (Dept. of Corporations v. State Personnel Board (Super. Ct. Sac. County, 2005, No. 04CS01424)). Ultimately, the superior court denied the petition.

On February 24, 2003, Forrest filed suit, in propria persona, against the Department, alleging wrongful termination, race and gender discrimination, harassment, retaliation, and breach of contract (Forrest v. Dept. of Corrections (Super. Ct. L.A. County, 2005, No. BC290873)). Before filing suit, Forrest had been declared a vexatious litigant. The original complaint was never served.

After Forrest filed the complaint, she retained David J. Duchrow, Esq., to represent her. On May 14, 2003, Forrest executed an “Attorney-Client Fee Contract” with Duchrow concerning his representation of her in the suit against the Department. The contract stated in part:

“1. CONDITIONS. This Agreement will not take effect, and the Office will have no obligation to provide legal services, until you return a signed copy of this Agreement. . . .

“2. SCOPE OF SERVICES. You are hiring the Office to represent you in obtaining compensation and other relief for your damages, incurred in your employment with the State of California, Department of Corporations. This Agreement covers all legal representation through trial and post-trial motions, but does not cover appeals, nor judgment or settlement collection matters. [!]••• m

“3. CLIENT’S DUTIES. You agree to be truthful with the Office, to cooperate, to keep us informed of developments, to abide by this Agreement, to pay our bills on time and to keep us advised of your address, telephone number and whereabouts. [