Delson v. Lotts3/4/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Laura Delson appeals from a judgment of dismissal entered in her action against respondents Richard L. Lotts and Sheppard, Mullin, Richter & Hampton LLP (Sheppard Mullin). The trial court dismissed the action after sustaining demurrers without leave to amend to the first amended complaint (FAC), which alleged counts for professional negligence, unfair business practices (Bus. & Prof. Code, ยง 17200), breach of implied contract, and breach of fiduciary duty. We affirm.
Appellant, in pro. per., filed her complaint in April 2001 and her FAC in June 2001. The FAC alleged the following. The action arises from underlying litigation in which Diana Gottshall sued her employers, ActSys Medical, Inc. (ActSys) and Apex, for wrongful termination of her employment and sued Jorgensen, Inc., the company which handled ActSys's human resources and personnel matters, for its part in the employment action. ActSys and Apex cross-complained against Jorgensen, Inc.
Jorgensen, Inc., was represented in the action by Lotts, an attorney practicing law at the law firm of Sheppard Mullin. Depositions of Karen Jorgensen, president of Jorgensen, Inc., and appellant, an agent of Jorgensen, Inc., were taken in March 2000. Lotts prepared Karen Jorgensen and appellant for deposition and represented them at deposition. Both deponents testified that at the direction of Karen Jorgensen appellant made a telephone call informing Gottshall that her employment was terminated.
After the depositions, ActSys cross-complained against Karen Jorgensen and appellant individually, as Roes 1 and 2, for negligence. Lotts informed appellant that he could not represent her because she could sue Jorgensen, Inc., for indemnity. Lotts continued to represent Jorgensen, Inc., and Karen Jorgensen, "the clients who were paying the bills."
Lotts, representing Jorgensen, Inc., and Karen Jorgensen, reached a confidential settlement with ActSys. Lotts refused to provide a copy of the agreement to appellant. Appellant demanded recovery of her attorney fees and costs from Jorgensen, Inc., and Lotts threatened appellant with an action for indemnity.
Respondents demurred to the FAC. They asserted that the FAC failed to state a cause of action, because it failed to allege facts sufficient to show an attorney-client relationship between appellant and respondents. Appellant opposed the demurrers. She requested judicial notice of certain documents, primarily correspondence concerning the underlying lawsuit. At the hearing on the demurrer, counsel appearing specially for appellant averred that she could amend the FAC to state that Jorgensen, Inc., informed appellant by letter that it had settled the underlying action not only on its behalf but on appellant's behalf, as well. The trial court sustained the demurrers without leave to amend and denied appellant's request for judicial notice.
Appellant moved for a new trial. She attached as exhibits to the motion her declaration, pleadings from the underlying litigation, her deposition transcript, and correspondence, in particular a letter dated July 11, 2001, from Jorgensen, Inc., signed by Karen Jorgensen, stating that Jorgensen, Inc. had settled the underlying litigation on appellant's behalf. The trial court denied the motion.
Appellant filed a motion for clarification of errors o
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