The California Court of Appeal for the Second District issued its ruling today in Duchrow v. Forrest, __ Cal. App. 4th __, No. B233736 (2d Dist. Apr. 30, 2013). The court held that the lower court abused its discretion by permitting an amendment to a complaint on the fourth day of a five-day trial, where there was no reason the amendment could not have been made sooner. The court of appeal found prejudice 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. . . . 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. . . . 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. . . . 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. . . . Fifth, Forrest was a transactional attorney with no litigation experience. . . . If Forrest had known before trial that Duchrow would ask the jury to award him $360,796.94, she would have retained counsel. . . . 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.
Judges & Attorneys
Presiding Justice Robert Mallano issued the opinion for the Court, with Associate Justices Frances Rothschild and Jeffrey W. Johnson concurring.
Appeal from a judgment of the Superior Court of Los Angeles County, Alan S. Rosenfield, Judge.
Ernestine Forrest, in pro per, for Defendant and Appellant.
Law Offices of David J. Duchrow and David J. Duchrow for Plaintiff and Respondent.
By CHARLES H. JUNG