Sturm v. Mcdowell Forster Assocs.
| Decision Date | 24 August 2020 |
| Docket Number | B288399 |
| Court | California Court of Appeals Court of Appeals |
| Parties | TIMOTHY J. STURM, Plaintiff and Appellant, v. MCDOWELL FORSTER ASSOCIATES et al., Defendants and Respondents. |
CHANGE IN APPELLATE JUDGMENT
The above-entitled opinion filed on August 24, 2020 is modified as follows:
On pages 29 after the Disposition, delete "The Department is to recover its costs on appeal" and replace it with "Respondents are to recover their costs on appeal."
There is a change in the appellate judgment.
/s/_________
* PERLUSS, P. J.
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** Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BC591112)
APPEAL from a judgment of the Superior Court of Los Angeles County, Richard E. Rico, Judge. Affirmed.
Timothy J. Sturm, in pro. per.; Law Office of Cliff Dean Schneider, Cliff Dean Schneider, Tiffany Schneider; Law Offices of Michael C. Murphy and Michael C. Murphy for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith and H. Gilbert Jones for Defendants and Respondents.
Timothy Sturm appeals from a judgment entered after the trial court granted the summary judgment motion filed by attorneys Lonnie McDowell and McDowell Forster Associates (collectively, McDowell). Sturm sued McDowell for legal malpractice in connection with its representation of Sturm in prosecuting a legal malpractice action against Sturm's previous lawyers, who in turn represented Sturm in an administrative appeal and settlement relating to his termination from public employment. On appeal, Sturm contends (1) the trial court erred in sustaining McDowell's demurrer to four causes of action in Sturm's first amended complaint without leave to amend; (2) the court erred by denying Sturm's ex parte application to continue the hearing on McDowell's summary judgment motion; and (3) the court erred in granting summary judgment because McDowell did not meet its burden to prove there were no issues of triable fact. We affirm.
Sturm was employed by the Los Angeles County Probation Department (Department) from February 15, 1975 to June 3, 2010. In May 2008 Sturm was suspended for 10 days following an incident in 2007 when he accidentally struck the forehead of a ward at the juvenile offender facility where Sturm was working. Sturm appealed the suspension to the Los Angeles County CivilService Commission (Commission). After a hearing on July 1, 2009 at which Sturm was represented by a lawyer provided by his union, the Commission sustained the suspension.
On April 7, 2009 Sturm was involved in a more serious incident where he forcibly removed a ward from a bathroom stall. In his opposition separate statement, Sturm admitted his conduct "could be interpreted as a 'technical' violation" of Department regulations that required an officer to request assistance during an escalated encounter and obtain approval before using force. On March 31, 2010 the Department issued Sturm a notice of intent to discharge for misuse of force and failure to exercise sound judgment.2 The Department set a Skelly3 hearing for May 19, 2010.
Sturm consulted his nephew Derek Newman, who was an attorney, concerning the threat of discharge, and Newman referred Sturm to Newman's law partner, John Du Wors, who specialized in employment matters. Sturm met with Du Wors on April 12, 2010 to discuss the matter, but Sturm did not request Du Wors represent him.
The day before the Skelly hearing, Sturm contacted the Department to request permission to record the hearing and examine the Department's files. The Department denied Sturm'srequest. Sturm then contacted Du Wors and asked Du Wors to represent him at the hearing. Du Wors responded that he could not properly prepare and appear on behalf of Sturm the next day, and he advised Sturm to request a continuance. Sturm did not request a continuance and did not appear at the hearing. Because the notice of intent to discharge was not opposed, the Department terminated Sturm's employment effective June 4, 2010.
In January 2011 Sturm retained Newman, Du Wors, and Newman's law firm (collectively, Newman) to represent him in an appeal of his termination to the Commission (the termination appeal). After a three-month continuance to accommodate Du Wors's availability, the Commission set a hearing on Sturm's appeal for July 11, 2011. On the day of the hearing, Du Wors and the Department's attorney negotiated a settlement, the outline of which was put on the record at the hearing.4 The terms of the settlement included the Department rescinding its termination and reinstating Sturm effective July 12, 2011; Sturm agreeing to retire by September 30, 2011; payment of four months and 10 days of back pay and benefits; future pay until Sturm's retirement on September 30, 2011 with benefits determined"according to county code"; and a letter of commendation for Sturm's lengthy service.
Over the next several months, Du Wors and the Department's attorney finalized a written settlement agreement, which Sturm signed on November 3, 2011. The settlement agreement provided the Department would rescind Sturm's discharge effective June 3, 2010 and Sturm would be "made whole" for four months and 10 days of service from June 3 to October 12, 2010 "in accordance with applicable provisions of County Code." Sturm would be reinstated to his prior position effective July 12, 2011; however, "Sturm's assignment from his reinstatement on July 12, 2011, until his retirement from the Department and County service on September 30, 2011, will be at the discretion of the [Department]." Sturm would receive a letter of commendation upon retirement. Sturm agreed to withdraw his administrative appeal and waive future administrative and judicial remedies relating to his discharge.
By early 2012 Sturm believed the Department and its retirement benefits administrator, the Los Angeles County Employees Retirement Association (LACERA), were refusing to honor the settlement agreement. LACERA delayed paying Sturm retirement service credit for the four months and 10 days for which he was awarded back pay under the settlement agreement (June 3, 2010 through October 12, 2010), and it rejected Sturm's demand it pay him for the entire 15 months from the date of Sturm's discharge to his retirement (from June 3, 2010 through September 30, 2011). Sturm requested Du Wors's assistance in enforcing the settlement agreement, to which Du Wors responded,
On March 16, 2012 Sturm filed a client petition for arbitration with the Los Angeles County Bar Association, disputing fees of more than $30,000 billed by Newman.
In late 2012 Sturm engaged McDowell to represent him in the fee arbitration against Newman, to enforce the settlement agreement against the Department, and to represent him in a potential malpractice action against Newman. The parties' retainer agreement stated, The retainer agreement expressly excluded "[r]e-litigation of the underlying case in this action."
The attorney fee arbitration took place on January 11, 2013. Newman sought $30,491.15, consisting of $40,491.15 in billed fees, costs, and interest, less a $10,000 retainer paid by Sturm. Sturm, represented by McDowell, contended Sturm owednothing beyond the retainer because of Newman's inadequate performance and improper billing. In its statement of decision, the arbitrator found "the billing statements contain some improper, excessive, and duplicative charges" and Newman was not entitled to interest, and held Sturm owed the firm $17,799.47, a reduction of 43 percent from what Newman claimed. With respect to the underlying representation, the arbitrator found the Department's "offer of reinstatement—the result of Wors' discussion with [the Department attorney] about the strong points in Sturm's case—was an outstanding accomplishment especially since it was achieved so early in the case when the cost of representation was still relatively low." "The terms of the settlement agreement were also impressive," and the "nonmonetary settlement benefits were also of considerable value." Although the terms of the written settlement "varied slightly" from the oral agreement by providing for back pay from June 3 to October 12, 2010 (instead of four months and 10 days), the variance favored Sturm.5 The arbitrator also found Du Wors properly counseled Sturm to settle the termination appeal because Sturm's asserted goal to expose corruption in the Department...
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