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Hilger v. Lerner10/30/2003
INTRODUCTION
Plaintiff sued defendants for legal malpractice after defendants represented plaintiff in two workers' compensation matters. Defendants moved for summary judgment. The trial court granted the motion, on the ground plaintiff was unable to prove he suffered any damages from defendants' alleged negligence. Plaintiff appeals from a judgment entered in favor of defendants.
Defendants also moved for sanctions against plaintiff and his attorneys pursuant to Code of Civil Procedure section 128.7, arguing that plaintiff's lawsuit was frivolous. They sought the full amount of their attorney's fees incurred in defending the complaint. The motion for sanctions was denied, on the ground that section 128.7 did not apply to a complaint and on the further ground that the statute was not intended to allow a party to recover all of its attorney's fees incurred in an action. Defendants cross-appeal from the order denying their motion for sanctions.
We affirm the judgment, because we agree with the trial court that plaintiff failed to raise a triable issue of material fact that he sustained any damages as a result of defendants' alleged professional negligence. We remand the matter to the trial court for further consideration of defendants' motion for sanctions.
FACTS AND PROCEDURAL HISTORY
A. Background
From May 1997 to October 2000, defendants, attorney Lawrence Lerner (Lerner), and Lerner, Moore, Mammano, Strasser & Silva, a Professional Corporation (the firm), represented plaintiff in two workers' compensation matters. Plaintiff claimed he sustained injuries to his knees, back, and psyche while employed as a warehouse worker between 1993 and 1997. Lerner and the insurers for plaintiff's employers sent plaintiff to specialists in the fields of orthopedics, pain management, and psychology.
During the pendency of the workers' compensation actions, plaintiff presented himself as a completely disabled person suffering from pain, dragging one leg, and unable to ambulate without the assistance of a walker. He also presented himself as being under the influence of alcohol and addicted to pain medication. On August 8, 2000, his deposition was taken. He appeared at the deposition limping and "partially intoxicated." Throughout the deposition, he portrayed himself as significantly disabled.
Unbeknownst to plaintiff, the insurers had taken sub rosa videotapes of him in June and July 2000. In the videotapes, plaintiff appeared to be engaged in conduct without a hint of physical disability.
It is undisputed that on August 17, 2000, plaintiff was offered $200,000 to settle his workers' compensation claims. It is also undisputed that the offer was withdrawn on August 28, 2000. The parties dispute the timing of the offer relative to the insurers' review of the sub rosa videotapes. Lerner maintains that the offer was withdrawn after the insurers viewed the sub rosa videotapes. Plaintiff maintains that the offer was made after the insurers viewed the sub rosa videotapes. In any event, the offer was withdrawn.
At a mandatory settlement conference on October 5, 2000, plaintiff signed a compromise and release, accepting $10,000 in "new money" to settle his claims. The insurers also agreed not to seek reimbursement of any of the monies previously paid to or on behalf of plaintiff, and not to refer plaintiff to "any agency for further [proceedings]." The settlement was approved by the Workers' Compensation Appeals Board.
In July 2001, plaintiff sued defendants for professional negligence. The complaint alleged that Lerner and the firm were negligent in failing to properly prepa
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