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
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 did not see 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.
We begin with a description of the prior suit and administrative proceedings, and then discuss the history of the present case.
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
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:
The parties refer to this retainer agreement as "Contract 1"; we refer to it as the "Litigation Agreement." As we discuss below, the lawsuit governed by the Litigation Agreement was dismissed involuntarily after Duchrow filed a successful motion to withdraw from the case and Forrest could not find another attorney.
On December 6, 2003, Forrest and Duchrow executed another "Attorney-Client Fee Contract." This second contract related to Duchrow's representation of Forrest in the administrative proceedings before the State Personnel Board. The contract provided that Forrest would pay Duchrow $275 for each hour he spent on the matter and also pay for costs. The contract recited that Forrest would be sent periodic billing statements for attorney fees and costs; payment was due within 10 days. If the bill was not paid within 30 calendar days of the date of the statement, Duchrow reserved the right to charge "interest at the annual percentage rate of twelve percent, or one percent per month." The parties refer to the second retainer agreement as "Contract 2"; we refer to it as the "Administrative Agreement."
The case was assigned to Judge Thomas L. Willhite, Jr. "[It] was set for trial in August 2004, and then continued to December 7, 2004. Prior to the December 7 trial date, Duchrow informed Forrest by facsimile that he would be withdrawing as counsel, but he did not in fact withdraw at that time. The December trial date was continued to January 18, 2005, then January 31, and then February 7. On February 4, 2005, Duchrow informed Forrest by letter that he would withdraw on February 7, but filed no motion with the court seeking to withdraw.
Before the July 7, 2005 hearing, Forrest "informed the trial court [in a written response] that when first instituting the lawsuit she had difficulty locating counsel because employment attorneys advised her they did not like litigating with the government. She also stated, `I attempted to initiate contact with a lawyer to consult after the June 20, 2005 proceedings but he was away on vacation. I now have an appointment with that lawyer on Wednesday, July 6, 2005.' ... Forrest advised that she did not yet have counsel [and] had not yet been able to retrieve the case file from Duchrow ...." (Forrest v. Department of Corporations, supra, 150 Cal.App.4th at p. 191.) "The trial court set an OSC regarding dismissal for failure to retain counsel for July 22, 2005 ...." (Ibid.)
On July 22, 2005, Forrest filed a declaration stating she had contacted four attorneys, one of whom could not represent her due to his schedule and two of whom could not meet with her until after July 22 to discuss the possibility of representation. She did not indicate the response she received from the fourth attorney. (Forrest v. Department of Corporations, supra, 150 Cal.App.4th at pp. 191-192.) "[T]he trial court continued the OSC to August 4, 2005." (Id. at p. 192.)
On July 28, 2005, the Department filed a request for dismissal pursuant to Code of Civil Procedure section 391.7, subdivision (c) (section 391.7(c)). That statute provides: "The clerk may not file any litigation presented by a vexatious litigant subject to a prefiling order unless the vexatious litigant first obtains an order from the presiding justice or presiding judge permitting the filing. If the clerk mistakenly files the litigation without the order, any party may file with the clerk and serve, or the presiding justice or presiding judge may direct the clerk to file and serve, on the plaintiff and other parties a notice stating that the plaintiff is a vexatious litigant subject to a prefiling order .... The filing of the notice shall automatically stay the litigation. The litigation shall be automatically dismissed unless the plaintiff within 10 days of the filing of that notice obtains an order from the presiding justice or presiding judge permitting the filing of the litigation ...."
On appeal, Division Two of this district affirmed in a split decision. It rejected Forrest's argument that the trial court erred in allowing Duchrow to withdraw, saying: "Duchrow filed a declaration in support of his motion to withdraw stating that he had an irreparable conflict with Forrest, continued representation would require him to violate ethical rules, Forrest had breached the fee agreement and continuing would pose an extreme financial hardship on him, Forrest had rendered his continued effective employment on the case unreasonably difficult, and she refused to follow his advice. In order to protect attorney-client privileged matters, the court conducted a hearing with Duchrow in camera with a court reporter present. After the proceedings in chambers, the court explained in open court that granting Duchrow's motion to be relieved was based on matters discussed in camera." (Forrest v. Department of Corporations, supra, 150 Cal.App.4th at p. 194.)
Finally, the Court of Appeal concluded that the trial court had not abused its discretion by failing to grant Forrest additional continuances. (Forrest v. Department of Corporations, supra, 150 Cal.App.4th at pp. 199-202.)
On November 17, 2008, Duchrow filed this action against Forrest. The complaint contained one cause of action, for breach of contract, and alleged as follows. The parties had entered into two retainer agreements. "Pursuant to paragraph 5 of the [Litigation Agreement, Duchrow] is entitled to a combined hourly and contingency based rate," and "[p]ursuant to paragraph 5 of [the Administrative Agreement, he] is entitled to an hourly rate of $275.00 for the time spen[t] in the administrative actions." Both agreements stated that Duchrow could recover costs and further provided that Forrest was liable for 12 percent interest on overdue payments. In the body of the complaint, Duchrow alleged that Forrest had breached the agreements by failing to pay for services rendered. And "[a]s a direct and proximate result of [Forrest's] breach of the [agreements], legal fees in the amount of $44,082.22 [are] now due and unpaid." The prayer of the complaint stated that Duchrow was seeking "the sum of $44,082.22 for breach of CONTRACT and the value of its performance."
The complaint made no mention of paragraph 9, which provided that Duchrow was entitled to payment for "all time spent" on the case if he withdrew for good cause. Nor did it explain how Duchrow had calculated the damages figure ($44,082.22) or state what portion of that amount was attributable to each agreement.
Trial by jury began on March 8, 2011. During the trial, Duchrow was represented or assisted by various attorneys and appears to have been self-represented at times. He handled most of the significant tasks, such as conducting the voir dire of potential jurors, making the opening statement, cross-examining Forrest, preparing jury instructions, and presenting closing argument. Forrest was self-represented throughout the trial.
On March 9, 2011, the parties made opening statements. Duchrow told the jury that "[u]nder the terms of the [Litigation Agreement], Ms. Forrest would pay $400 per hour for the first 20 hours of time, a total of $8,000, plus a contingency fee, a percentage of the recovery.... [¶] Also, under that agreement, Ms. Forrest would pay for what are called costs." Duchrow stated that Forrest had paid the $8,000. He continued: "The [Litigation Agreement] also provides that the law office may withdraw from representation under certain circumstances: [¶] One, if [Forrest] doesn't pay her bills; [¶] Two, if she does not cooperate; [¶] and three, if there's continuing representation which would be either illegal or unethical ...." According to Duchrow, the evidence would show that Forrest had failed to pay her bills and that she was uncooperative during every phase of the case. Duchrow also argued that Forrest had created an ethical problem for him in the prior suit because she had stated to the trial court, under penalty of perjury, that "she didn't have the money to pay the court costs" — thereby obtaining a fee waiver — but subsequently failed to inform the court that her financial circumstances had changed when she received an award of over $200,000 in backpay from the State Personnel Board.
With respect to damages, Duchrow asserted that under the Litigation Agreement, he was entitled to compensation for "all of my time in the case" because he had to "withdraw for cause." He said Forrest's misconduct left him with no choice but to withdraw. Duchrow stated that he charged $400 per
Addressing damages under the Administrative Agreement, Duchrow said, "The total of the past due on [that agreement] for fees, costs, and interest, which is provided for in the contract, is almost $36,000."
In her opening statement, Forrest started out by saying, "This is a case that [Mr. Duchrow] described that I know nothing about. The facts are not that way." She went on to say: "Yes, I'm a lawyer, but I'm a different kind of lawyer. I'm what's called a transactional lawyer.... I deal with paper.... [¶] When I have a problem, when I have to go to court, I have to hire a trial lawyer .... [¶] So you're here with me in a first experience. I've never done a trial before, but I'm going to do the best I can ...." In Forrest's words, "I agreed to pay [Mr. Duchrow] $8,000 up front and to enter into a contingency agreement. [¶] And what that means is that, if you win, you pay the lawyer. If you don't win, you don't owe the lawyer any money." Forrest took issue with Duchrow's contention that he "withdrew" in the prior suit, saying that, instead, he had "abandoned" her.
On the witness stand, Duchrow testified that, under the Litigation Agreement, he was to be paid $400 per hour until Forrest had paid $8,000. Thereafter, the agreement was purely a contingency fee agreement. Duchrow discussed paragraph 9 of the Litigation Agreement, stating it entitled him to payment for "all time spent on the case" at $400 per hour if a client discharged him or if he withdrew for cause. He said he had spent 800.65 hours on the prior suit. Duchrow also asserted that, under the Administrative Agreement, he was entitled to a reduced billing rate of $275 per hour for all work on the matter.
Duchrow testified that Forrest had breached the Litigation Agreement (1) by not paying her bills, consisting of costs incurred after she had paid the $8,000; (2) by refusing to cooperate with his office; and (3) by engaging in conduct that would "render continuing representation unlawful and unethical." He described each of these alleged breaches in detail. Duchrow admitted that after Forrest had paid the $8,000, he no longer sent her monthly bills for attorney fees — as opposed to costs — under the Litigation Agreement. As he put it, "[A]fter she had reached the $8,000 maximum hourly billing, it was a contingency fee, and there is no need to bill the client for the time because I expect my fee to come out of the recovery at the end." Duchrow also said Forrest had breached the Administrative Agreement by not paying her bills, which, in accordance with that agreement, consisted of both attorney fees and costs.
Forrest cross-examined Duchrow. Afterward, he moved to amend the complaint to conform to proof. Duchrow stated that the complaint had requested "around $44,000" in damages. But, he said, the evidence at trial supported damages for breach of the Litigation Agreement "more along the lines of $320,000" and, for breach of the Administrative Agreement, damages of $35,932.49. Forrest opposed the amendment. Referring to paragraph 9, she said: "This case has been $44,000 throughout the period we've considered it. It's only in these last days that Mr. Duchrow, who was aware of this clause before, decided that he would use this clause in what now appears to be a test case to see if he can switch the fees. [¶] And I just totally object to letting him make that kind of change at the last minute in the pleading, what the prayer was, because the prayer has been for, what, about two years now, $44,000. [¶] If he was aware of this contract provision, if it was as prominent as he says it is, he should have been able to ... make [me] aware of that and the effect of it long before, and in consideration [I] would have had to try and find counsel or something. It's a last-minute change that is unjustified."
Duchrow responded by stating: "[T]hese figures were given to Ms. Forrest during my deposition. She's been aware of the amount I've been seeking. I don't believe a party is limited by the amount stated in the complaint since the complaint is what puts her on notice of a breach. [¶] Further, she read the [Litigation Agreement] back in 2003 and was aware of this provision, and now that I'm exercising it and now that the evidence is in, we have the correct amounts."
The trial court inquired as to when Duchrow's deposition had been taken, and Duchrow answered: "I believe it was June of 2010." Forrest added: "At which time everything had been completed. And we kept coming in, and we kept having the date changed for trial, because trial was shortly after that. July was the trial date. So we were moving toward the trial date. [¶] [I] was not on notice, the prominence that Mr. Duchrow gives to this paragraph which talks about how to withdraw, the prominence is in his head right now. It's nothing to suggest in the letters he wrote to [me]. [¶] ... There's no notice he gave [me] of a provision like this.... He didn't give [me] billings
Next, Forrest took the witness stand and testified in narrative form. She described the Litigation Agreement as follows: "Basically, I was to pay [Mr. Duchrow] $8,000 up front, which I did over time, taken out of my payroll, and he was to have 40 percent of my recovery. It was a contingency fee arrangement, 40 percent. And if he failed to prevail, then he didn't get anything."
On the subject of her alleged failure to cooperate, Forrest testified: "[T]here was no reason for me to create any problems for Mr. Duchrow. I did not do so. I did whatever he asked that I do." She also said that the behavior he described as uncooperative did not happen. Forrest admitted that, in response to a document demand, she "got a little behind" in finding all of the relevant documents. She "rush[ed]" to get everything to Duchrow, who then "took his own time getting it to the lawyers."
Forrest disputed that she had a change in financial circumstances that created an ethical problem for Duchrow. After the mistrial was declared in the prior suit, the retrial was scheduled to begin on June 20, 2005. In May 2005, Forrest received "payroll warrants" from the State of California worth around $200,000 — the amount of backpay awarded by the State Personnel Board. Nevertheless, the Department filed a petition for a writ of administrative mandate seeking to set aside that award (Dept. of Corporations v. State Personnel Board, supra, 04CS01424). The superior court judge in the writ proceeding stated that the question of whether Forrest was entitled to backpay would not be determined until the court had ruled on the Department's writ petition. The judge instructed Forrest not to cash the warrants before the conclusion of the writ proceeding. In addition, the judge told Forrest, "You can't cash this. If you cash this and I rule against you, ... you'll have to pay it back." Ultimately, the superior court judge denied the Department's petition on December 23, 2005 — about six months after Duchrow had withdrawn from the prior suit. In referring to Duchrow's alleged ethical problem, Forrest testified, "There is no truth whatsoever to that."
Forrest disagreed with Duchrow's assertion that she had breached the Litigation Agreement by failing to pay his bills, which consisted of costs. She pointed out that, as stated in the Litigation Agreement, "Costs and disbursements incurred and advanced in the prosecution or settlement of your claim
Forrest testified that Judge Bigelow granted Duchrow's motion to withdraw after meeting with him in chambers. The reasons for granting the motion were not announced in court. That led Forrest to ask Judge Bigelow, "`Well, how do you know it's even true?'" According to Forrest, Judge Bigelow replied, "`It doesn't matter if it's true. And he's an officer of the court.'"
With respect to the Administrative Agreement, Forrest said she discharged Duchrow in or before June 2004 because she thought his fees were excessive and she had been overbilled.
After Forrest finished testifying, Duchrow briefly cross-examined her. He questioned her about the midtrial amendment of the complaint and her financial circumstances at the time the prior suit was to be retried before Judge Bigelow.
The trial court instructed the jury using standard instructions for a breach of contract claim. Closing arguments followed. Duchrow described his litigation experience, saying he had "tried some cases here" and had "been in front of the California Supreme Court a few times." He urged the jury to award him damages for breach of the Litigation Agreement pursuant to paragraph 9, stating he had spent 800 hours on Forrest's case, billed at $400 per hour. He summarized his own testimony about how Forrest had breached the two retainer agreements and stated he had performed all of his contractual obligations. He requested that the jury award him $324,864.45 for breach of the Litigation Agreement and $35,932.49 for breach of the Administrative Agreement, for a total award of $360,796.94.
In her closing argument, Forrest asserted she had not breached the Litigation Agreement, Duchrow should not be able to rely on paragraph 9 to "change an $8,000-plus contingency agreement into a $300-some thousand agreement," and he had breached the Litigation Agreement by withdrawing in the prior suit instead of taking the case to trial. She argued that his claim under the Administrative Agreement was barred by the statute of limitations because she discharged him in or before June 2004 in connection with the State Personnel Board proceedings, and he did not file suit until November 2008. (See Code Civ. Proc., § 337.1.)
The jury commenced deliberations on March 14, 2011. The next day, the jury reached a verdict. In completing a special verdict form, the jury found
On appeal, Forrest contends the trial court erred by granting Duchrow's midtrial motion to amend the complaint, the jury instructions were flawed, the judgment was not supported by substantial evidence, the award of damages was excessive, and the trial court erred by excluding evidence regarding her income and by excluding certain witnesses. We conclude the trial court erred in granting the motion to amend and reverse on that basis. Duchrow offered no reason for the delay in seeking the amendment; the amendment changed the relevant facts and the theory of liability, significantly increasing the damages requested, warranting additional discovery and the use of an expert witness on attorney fee awards, making representation by counsel all the more important, and requiring research to determine the enforceability of paragraph 9; and the amendment resulted in prejudice.
We first dispose of Forrest's contention that the judgment was not supported by substantial evidence and then address the granting of Duchrow's motion to amend the complaint to conform to proof.
Thus, the judgment was supported by substantial evidence.
"Code of Civil Procedure section 473, subdivision (a)(1) permits a court, `in furtherance of justice,' to `allow a party to amend any pleading ... in any ... respect.' The trial court's ruling on a motion to amend a pleading is reviewed under an abuse of discretion standard ..., and the appellant has the burden of establishing its discretion was abused.... Generally, `the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider a number of factors: "including the conduct of the moving party and the belated presentation of the amendment...."'" (Emerald Bay Community Assn. v. Golden Eagle Ins. Corp. (2005) 130 Cal.App.4th 1078, 1097 [31 Cal.Rptr.3d 43], citations & italics omitted.)
"[Code of Civil Procedure section] 469 specifically governs motions to amend at trial to conform to proof .... [It] provides in relevant part as follows: `No variance between the allegation in a pleading and the proof is to be deemed material, unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.' Such amendments at trial to conform to proof, `if not prejudicial, are favored since their purpose is to do justice and avoid further useless litigation.' ...
"As summarized by our Supreme Court in Trafton v. Youngblood (1968) 69 Cal.2d 17, 31 [69 Cal.Rptr. 568, 442 P.2d 648]: `[T]he allowance of amendments to conform to the proof rests largely in the discretion of the trial court and its determination will not be disturbed on appeal unless it clearly appears that such discretion has been abused.... Such amendments have been allowed with great liberality "and no abuse of discretion is shown unless by permitting the amendment new and substantially different issues are introduced in the case or the rights of the adverse party prejudiced ...." ...' Conversely, `"amendments of pleadings to conform to the proofs should not be allowed when they raise new issues not included in the original pleadings and upon which the adverse party had no opportunity to defend...." ...' ...
Duchrow filed the present action on November 17, 2008, to recover attorney fees, costs, and interest allegedly owed for his work in the prior suit and the administrative proceedings. Judgment was entered in the prior suit on August 12, 2005, and Forrest discharged Duchrow in the administrative proceedings in or before June 2004. Thus, Duchrow had more than three years to file an adequately pleaded complaint. There was no rush to get something filed.
Further, although this action was filed in November 2008, Duchrow did not move to amend the complaint until March 11, 2011 — on the fourth day of a five-day trial. He waited more than two years to allege a substantial increase in damages (from $44,082.22 to $365,044.44) and to change the theory of liability under the Litigation Agreement from paragraph 5 — a 40 percent contingency fee — to paragraph 9 — which permitted a recovery for "all time spent" on the case if Duchrow withdrew for good cause. Paragraph 5 was described in the complaint; paragraph 9 was not referenced in the complaint, directly or indirectly. Yet, as Duchrow stated in his opposition to Forrest's demurrer: "[T]he specific terms of the signed, written contracts are described in the Complaint.... The fee was to be a combined hourly and contingency rate." (Italics added, underscoring omitted.) In moving to amend the complaint, Duchrow took a contrary position: He invoked paragraph 9, which was not mentioned, much less "described," in the complaint; and the "combined hourly and contingency rate" became only an hourly rate — $400 per hour for 800.65 hours — with no contingency.
Duchrow offered no explanation for the delay other than to say at trial that he gave Forrest the new damages figures during his deposition, and "I don't believe a party is limited by the amount stated in the complaint since the complaint is what puts [Forrest] on notice of a breach." But mentioning new figures at Duchrow's deposition did not put Forrest on notice that Duchrow intended to rely on a new theory of liability at trial to obtain significantly greater damages than the amount sought in the original pleading. In arguing for the amendment in the trial court, Duchrow did not produce the pertinent pages of his deposition transcript, nor has he cited them in the record on appeal. As a result, we do not know what was said at his deposition. The statements Duchrow made to the trial court in support of the amendment constitute argument, not evidence. (See South Sutter, LLC v. LJ Sutter
Before filing the complaint, Duchrow had all of the necessary information to include the appropriate allegations if he wanted to recover damages under paragraph 9; he knew or could have easily determined how many hours he had spent on the prior suit and the amount of costs he had incurred. In short, the midtrial amendment was made unreasonably late and without a reasonable excuse for the delay. "`"`[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may — of itself — be a valid reason for denial.'"'" (P&D Consultants, Inc. v. City of Carlsbad, supra, 190 Cal.App.4th at p. 1345.) And the amendment was "`"offered after long unexplained delay ... [and] where there [was] a lack of diligence ...."'" (Melican v. Regents of University of California, supra, 151 Cal.App.4th at p. 175.)
But under the midtrial amendment, Duchrow's theory of liability for breach of the Litigation Agreement turned on whether he had good cause to withdraw, resulting in an attack on every perceived wrong Forrest allegedly committed. And Forrest's defense no longer involved a contingency fee agreement but, instead, required her to respond to multiple charges of improper conduct. In addition, the question of whether Duchrow had actually spent 800.65 hours on the prior suit became a central issue, as did whether 800.65 hours was a reasonable amount of time. Consequently, under the amendment, "`new and substantially different issues [were] introduced in the case ....'" (Trafton v. Youngblood, supra, 69 Cal.2d at p. 31, italics omitted.) The amendment "`raise[d] new issues not included in the original pleadings.'" (Ibid.)
The amendment of the complaint prejudiced Forrest in several ways. First, it changed the damages sought from $44,082.22, as pleaded in the complaint, to $312,260 in attorney fees and $16,851.95 in costs under the Litigation Agreement, plus an additional $27,777.36 in attorney fees and $8,155.13 in accrued interest under the Administrative Agreement, for a total of $365,044.44. In closing argument, Duchrow asked the jury to award him $360,796.94. The jury obviously took the amendment into consideration because it awarded Duchrow $140,056.95 — more than three times the amount requested in the complaint.
Second, had Forrest known about the new damages theory before the discovery cutoff date, she could have used one or more discovery methods to determine if Duchrow had in fact spent 800.65 hours on the prior suit. As she testified at trial: "[Mr. Duchrow] hadn't submitted any bills over time to allow [me] to know about the accumulating funds." "I've seen no bills I have to pay." And Duchrow testified that after Forrest had paid $8,000 for the first 20 hours of his work, he no longer billed her for attorney time under the Litigation Agreement. The amendment entitled Forrest to conduct discovery to determine the total number of hours Duchrow had spent on the prior suit and the specific tasks he had performed. Because a continuance was necessary to permit further discovery and the trial was nearing its end, the motion to amend should have been denied. (See Magpali v. Farmers Group, Inc., supra, 48 Cal.App.4th at p. 488.)
Third, Forrest could have retained an expert on attorney fee awards, and called him or her as a witness at trial to testify about whether $312,260 was a reasonable amount of attorney fees. (See Mardirossian & Associates, Inc. v. Ersoff, supra, 153 Cal.App.4th at pp. 272-273; Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1395-1396 [84 Cal.Rptr.3d 754]; Wegner et al., Cal. Practice Guide: Civil Trials and Evidence, supra, ¶¶ 4:282.35, 8:713.2, pp. 4-73 to 4-74 (rev. # 1, 2012), 8C-88 (rev. # 1, 2008).)
Fourth, if Forrest had known earlier about Duchrow's new theory of liability, she would have given more thought to accepting his offer to compromise (see Code Civ. Proc., § 998) or would have seriously considered settling the case. As Forrest stated in opposing the amendment, if she had known before trial that Duchrow was going to seek damages under paragraph 9, she would have asked herself, "Is this worth it?"
Fifth, Forrest was a transactional attorney with no litigation experience. Duchrow was a seasoned trial attorney. When Duchrow testified on direct
Last, if Duchrow had made a timely motion to amend, Forrest would have conducted legal research and argued that paragraph 9 was unenforceable. As noted, paragraph 9 permitted Duchrow to recover attorney fees for "all time spent" on a case if he was discharged by a client or if he withdrew from representation for good cause.
In contrast, an attorney who withdraws without justifiable cause may not recover any attorney fees under a contingency fee agreement. (Rus, Miliband & Smith v. Conkle & Olesten, supra, 113 Cal.App.4th at pp. 672-676; Estate of Falco, supra, 188 Cal.App.3d at pp. 1014-1017; Vapnek, supra, ¶¶ 5:1070
"Where justifiable cause for withdrawal is shown, the attorney's right to quantum meruit recovery for services rendered is the same as where the attorney has been discharged after partial performance." (Vapnek, supra, ¶ 5:1087, p. 5-138 (rev. # 1, 2011).) A quantum meruit recovery requires a trial court to consider several factors: "`[t]he nature of the litigation, its difficulty, the amount involved, the skill required in its handling, the skill employed, the attention given, the success or failure of the attorney's efforts, the attorney's skill and learning, including his [or her] age and experience in the particular type of work demanded.'" (Mardirossian & Associates, Inc. v. Ersoff, supra, 153 Cal.App.4th at p. 272.)
In her opening brief, Forrest states, "A line of cases including ... Estate of Falco[, supra, 188 Cal.App.3d 1004] ... and more recently Rus, Miliband & Smith v. Conkle & Olesten[, supra, 113 Cal.App.4th 656], ... have supported a conclusion that where an attorney abandons or withdraws from a case and there is no recovery, as is true here, without a finding of good cause and possibly even with one, the abandoning, withdrawing attorney cannot recover fees."
Because we are reversing the judgment and remanding the case for a new trial on Duchrow's cause of action for breach of the May 14, 2003 contract, Forrest may challenge the validity of paragraph 9 in the first instance before the trial court.
The judgment is reversed, and the case is remanded for a new trial on plaintiff's cause of action for breach of the May 14, 2003 contract. Defendant is entitled to costs on appeal.
Rothschild, J., and Johnson, J., concurred.
