Think Theories Through Before Filing Complaint!

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. Later, 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 the fourth day of a five-day trial, after plaintiff rested, 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not mentioned in the complaint—plaintiff was entitled to recover for “all time spent” on the prior case because he had withdrawn for good cause. The client opposed the amendment. The trial court granted the motion to amend. The jury awarded plaintiff $140,056.95. On appeal, the client contended that the trial court abused its discretion by permitting the amendment. The appellate court agreed and reversed the judgment and remanded the matter for a new trial. Duchrow v. Forrest (Cal. App. Second Dist., Div. 1; April 30, 2013) 215 Cal.App.4th 1359.