Lawyer fails to obtain expert witness when
representing Kaiser patient
I have no idea whether or not this patient had a good case
MITCHELL v. HOBDY
JACQUELINE M. MITCHELL, Plaintiff and Appellant,
DAMON LAMONT HOBDY, Defendant and Respondent.
Court of Appeals of California, Second District, Division One.
Filed April 28, 2011.
Law Offices of Walter J. Wabby, Walter J. Wabby; Law Office of Richard T Ferko and
Richard T. Ferko for Plaintiff and Appellant.
Damon L. Hobdy, in pro. per., for Defendant and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Jacqueline M. Mitchell filed a malpractice lawsuit against her former attorney, Damon
L. Hobdy. She appeals from the trial court's denial of her request for continuance and
the court's grant of summary judgment in Hobdy's favor. We affirm.
On June 24, 2008, Mitchell filed a complaint against Hobdy alleging negligence,
breach of contract, breach of fiduciary duty, fraud and deceit, and unfair business
practices in violation of Business and Professional Code sections 17200 and 17500 et
seq. Hobdy filed a demurrer on December 4, 2008. After a hearing on January 21,
2009, the trial court sustained the demurrer with leave to amend on three causes of
action, and overruled the demurrer on Mitchell's causes of action for fraud and unfair
Mitchell filed a first amended complaint on January 30, 2009, alleging the following
facts. Mitchell and Hobdy entered into an attorney-client retainer agreement on
October 26, 2006, under which Hobdy was to represent Mitchell in a medical
malpractice lawsuit against Kaiser Permanente Hospital (Kaiser) related to Mitchell's
knee replacement operation.
Mitchell paid $12,500 to Hobdy on October 24, 2006. Hobdy filed a demand for
arbitration on February 19, 2007. Arbitration began. Hobdy did not make any
effort to retain, and did not retain, a medical expert to support Mitchell's
On October 2, 2007, Kaiser filed a motion for summary judgment.1 Hobdy's motion to
withdraw as Mitchell's attorney was granted on December 4, 2007, three days before
Mitchell's response to the summary judgment motion was due. The arbitrator granted
an extension allowing Mitchell until January 15, 2008 to file her response, but Mitchell
was unable to find new counsel in time to hire an expert or file an opposition. Mitchell
therefore filed a voluntary dismissal,2 instead of obtaining a judgment of $200,000.
Hobdy's actions constituted legal malpractice, breached the retainer agreement,
breached his fiduciary duty to Mitchell, and constituted fraud and deceit.
The retainer agreement violated Business and Professions Code sections 17200 and
17500 (the Unfair Competition Law, or UCL), because it did not comply with Business
and Professions Code section 6148, as it did not set forth the basis of compensation
or Hobdy's responsibilities.
Hobdy did not provide Mitchell with bills or statements, and to the extent that it was a
contingency agreement, the retainer agreement did not comply with Business and
Professions Code section 6147.
Further, Hobdy did not communicate with Mitchell or apprise her of the
status of her case. The complaint requested damages of $250,000 (the amount
Mitchell would have recovered in her action against Kaiser),3 general damages,
punitive damages, restitution of $12,500, and injunctive relief.
Hobdy filed a demurrer to the first amended complaint on February 27, 2009.
Mitchell's counsel failed to appear at a case management conference on March 4,
2009, at which the trial court set a date for jury trial of September 22, 2009, ordered
the parties to mediation, and ruled that no amendments could be filed without an
order of the court. On March 18, 2009, Mitchell attempted to file a second amended
complaint in lieu of opposing Hobdy's demurrer. Hobdy objected that Mitchell had not
obtained the required court order. At a hearing on April 16, 2009, the trial court
overruled the demurrer on the claims for legal malpractice, breach of contract, fraud,
and violation of the Business and Professions Code. The court sustained the
demurrer to the claim for breach of fiduciary duty. Hobdy filed an answer to the first
amended complaint on May 8, 2009.
The judgment is affirmed. Each party shall bear its own costs on appeal.
MALLANO, P. J.
Kaiser Permanente links
Doctors and Lawyers